EXHIBIT 2.1
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022
Telephone: 212/836-8000
Facsimile: 212/836-7157
Andrew A. Kress (AK 8985)
Counsel to Arthur J. Steinberg, as Investment
Company Act Trustee of IBF Collateralized Finance
Corporation & IBF VI-Secured Lending Corporation
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
In re ) Chapter 11
)
INTERBANK FUNDING CORP., ) Case No. 02-41590 (BRL)
IBF VI-SECURED LENDING CORPORATION, ) Case No. 02-41591 (BRL)
IBF COLLATERALIZED FINANCE CORPORATION, ) Case No. 02-41592 (BRL)
AND IBF PREMIER HOTEL GROUP, INC., ) Case No. 02-15477 (BRL)
) (Jointly Administered)
Debtors. )
FIRST AMENDED
JOINT LIQUIDATING PLAN OF REORGANIZATION
WITH RESPECT TO
INTERBANK FUNDING CORP.,
IBF VI-SECURED LENDING CORPORATION,
IBF COLLATERALIZED FINANCE CORPORATION
AND IBF PREMIER HOTEL GROUP, INC.
AUGUST 14, 2003
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS; RULES OF INTERPRETATION................................................................... 2
1.1 Scope of Definitions........................................................................... 2
1.2 Defined Terms.................................................................................. 2
1.2.1. "Administrative Claim"................................................................ 2
1.2.2. "Administrative Tax Claim"............................................................ 2
1.2.3. "Affiliate"........................................................................... 2
1.2.4. "AIH"................................................................................. 2
1.2.5. "Allowed Claim"....................................................................... 2
1.2.6. "Allowed Interest".................................................................... 2
1.2.7. "Assets".............................................................................. 3
1.2.8. "Avoidance Action".................................................................... 3
1.2.9. "Ballot".............................................................................. 3
1.2.10. "Bankruptcy Code"..................................................................... 3
1.2.11. "Bankruptcy Court".................................................................... 3
1.2.12. "Bankruptcy Rules".................................................................... 3
1.2.13. "Bar Date"............................................................................ 3
1.2.14. "Business Day"........................................................................ 3
1.2.15. "Cash"................................................................................ 3
1.2.16. "Cash-Out Claim"...................................................................... 3
1.2.17. "Causes of Action".................................................................... 3
1.2.18. "CFC"................................................................................. 3
1.2.19. "CFC Notes"........................................................................... 3
1.2.20. "Chapter 11 Case"..................................................................... 3
1.2.21. "Claim"............................................................................... 3
1.2.22. "Claims Objection Deadline"........................................................... 4
1.2.23. "Class"............................................................................... 4
1.2.24. "Committee"........................................................................... 4
1.2.25. "Committee Fees"...................................................................... 4
1.2.26. "Confirmation"........................................................................ 4
1.2.27. "Confirmation Date"................................................................... 4
1.2.28. "Confirmation Hearing"................................................................ 4
1.2.29. "Confirmation Order".................................................................. 4
1.2.30. "Debtors"............................................................................. 4
1.2.31. "Debtor Intercompany Claim"........................................................... 4
1.2.32. "Disallowed Claim".................................................................... 4
1.2.33. "Disclosure Statement"................................................................ 4
1.2.34. "Disputed Claim"...................................................................... 4
1.2.35. "Disputed Claims Reserve"............................................................. 4
1.2.36. "Distribution Record Date"............................................................ 4
1.2.37. "District Court"...................................................................... 5
1.2.38. "Effective Date"...................................................................... 5
1.2.39. "Escrow Agent"........................................................................ 5
1.2.40. "Escrow Agreement".................................................................... 5
1.2.41. "Escrowed Amount"..................................................................... 5
1.2.42. "Escrow Claim"........................................................................ 5
1.2.43. "Escrow Commission Claims"............................................................ 5
1.2.44. "Escrow Deficiency Claim"............................................................. 5
1.2.45. "Escrow Note"......................................................................... 5
1.2.46. "Estate".............................................................................. 6
1.2.47. "Exhibit"............................................................................. 6
1.2.48. "Expense Reserve"..................................................................... 6
1.2.49. "Face Amount"......................................................................... 6
1.2.50. "File"................................................................................ 6
1.2.51. "Final Order"......................................................................... 6
1.2.52. "Fund Assets"......................................................................... 6
1.2.53. "Fund Debtors"........................................................................ 6
1.2.54. "Fund Liquidating Agent".............................................................. 6
1.2.55. "Fund Liquidating Committee".......................................................... 6
1.2.56. "Fund Liquidating LLC"................................................................ 6
1.2.57. "Fund Liquidating LLC Agreement"...................................................... 6
1.2.58. "Fund Membership Interests"........................................................... 6
1.2.59. "General Unsecured Claim"............................................................. 6
1.2.60. "IBF"................................................................................. 7
1.2.61. "IBF Assets".......................................................................... 7
1.2.62. "IBF Liquidating Agent"............................................................... 7
1.2.63. "IBF Liquidating Committee"........................................................... 7
1.2.64. "IBF Liquidating LLC"................................................................. 7
1.2.65. "IBF Liquidating LLC Agreement"....................................................... 7
1.2.66. "IBF Membership Interests"............................................................ 7
1.2.67. "Impaired"............................................................................ 7
1.2.68. "Initial Escrow Distribution"......................................................... 7
1.2.69. "Initial Escrow Holdback"............................................................. 7
1.2.70. "Initial Non-Escrow Distribution"..................................................... 7
1.2.71. "Investment Company Act".............................................................. 7
1.2.72. "Intercompany Claim".................................................................. 7
1.2.73. "Interest"............................................................................ 7
1.2.74. "Interest Guarantee Claim"............................................................ 8
1.2.75. "Internal Revenue Code"............................................................... 8
1.2.76. "Liquidating Agents".................................................................. 8
1.2.77. "Liquidating Committees".............................................................. 8
1.2.78. "Liquidating LLCs".................................................................... 8
1.2.79. "Liquidating LLC Agreements".......................................................... 8
1.2.80. "Membership Interests"................................................................ 8
1.2.81. "Net Escrow Commission Recovery"...................................................... 8
1.2.82. "Non-Debtor Affiliate"................................................................ 8
1.2.83. "Non-Debtor Affiliate Claim".......................................................... 8
1.2.84. "Notes"............................................................................... 8
1.2.85. "Other Administrative Claim".......................................................... 8
1.2.86. "Other Priority Claim"................................................................ 8
1.2.87. "Person".............................................................................. 8
1.2.88. "Petition Date"....................................................................... 8
1.2.89. "Plan"................................................................................ 8
1.2.90. "Priority Tax Claim".................................................................. 8
1.2.91. "Private Securities Claim"............................................................ 9
1.2.92. "Professional"........................................................................ 9
1.2.93. "Professional Claim".................................................................. 9
1.2.94. "Pro Rata"............................................................................ 9
1.2.95. "Scheduled"........................................................................... 9
1.2.96. "Schedules"........................................................................... 9
1.2.97. "SEC"................................................................................. 9
1.2.98. "SEC Litigation"...................................................................... 9
1.2.99. "Secured Claim"....................................................................... 9
1.2.100. "Secured IBF Claim"................................................................... 9
1.2.101. "SLC"................................................................................. 9
1.2.102. "SLC Bonds"........................................................................... 9
1.2.103. "SLC Indenture"....................................................................... 9
ii
1.2.104. "SLC Indenture Trustee"............................................................... 9
1.2.105. "Transaction Documents"............................................................... 9
1.2.106. "Treasury Regulations"................................................................ 10
1.2.107. "Trustee"............................................................................. 10
1.2.108. "Unclaimed Distributions Reserve"..................................................... 10
1.2.109. "Unimpaired".......................................................................... 10
1.2.110. "U.S. Trustee"........................................................................ 10
1.3 Rules of Interpretation........................................................................ 10
1.4 Computation of Time............................................................................ 10
1.5 Reference to Monetary Figures.................................................................. 10
1.6 Exhibits and Transaction Documents............................................................. 10
ARTICLE II ADMINISTRATIVE CLAIMS; PRIORITY TAX CLAIMS............................................................ 11
2.1 Administrative Claims.......................................................................... 11
2.2 Priority Tax Claims............................................................................ 11
ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS............................................................... 11
3.1 Claims against and Interests in IBF............................................................ 11
3.2 Claims against and Interests in SLC............................................................ 12
3.3 Claims against and Interests in CFC............................................................ 12
3.4 Claims against and Interests in IBF Hotel...................................................... 12
ARTICLE IV IDENTIFICATION OF UNIMPAIRED AND IMPAIRED CLASSES..................................................... 13
4.1 Unimpaired Classes............................................................................. 13
4.2 Impaired Classes............................................................................... 13
ARTICLE V TREATMENT OF CLAIMS AND INTERESTS...................................................................... 13
5.1 Claims against and Interests in IBF............................................................ 13
(a) IBF-1 - Secured Claims against IBF....................................................... 13
(b) IBF-2 - Other Priority Claims against IBF................................................ 14
(c) IBF-3 - General Unsecured Claims against IBF, Intercompany Claims by SLC against IBF and
Intercompany Claims by CFC against IBF................................................... 14
(d) IBF-4 - Interest Guarantee Claims........................................................ 14
(e) IBF-5 - Non-Debtor Affiliate Claims/Intercompany Claims by IBF Hotel..................... 14
(f) IBF-6 - Private Securities Claims against IBF............................................ 15
(g) IBF-7 - Interests in IBF................................................................. 15
5.2 Claims against and Interests in SLC............................................................ 15
(a) SLC-1 - Secured Claims against SLC....................................................... 15
(b) SLC-2 - Other Priority Claims against SLC................................................ 15
(c) SLC-3 - Escrow Claims against SLC........................................................ 15
(d) SLC-4 - General Unsecured Claims against SLC............................................. 16
(e) SLC-5 - Cash-Out Claims against SLC...................................................... 16
(f) SLC-6 - Intercompany Claims against SLC.................................................. 16
(g) SLC-7 - Private Securities Claims against SLC............................................ 16
(h) SLC-8 - Interests in SLC................................................................. 16
5.3 Claims against and Interests in CFC............................................................ 16
(a) CFC-1 - Secured Claims against CFC....................................................... 16
(b) CFC-2 - Other Priority Claims against CFC................................................ 17
(c) CFC-3 - Escrow Claims against CFC........................................................ 17
(d) CFC-4 - General Unsecured Claims against CFC............................................. 17
(e) CFC-5 - Cash-Out Claims against CFC...................................................... 18
(f) CFC-6 - Intercompany Claims against CFC.................................................. 18
(g) CFC-7 - Private Securities Claims against CFC............................................ 18
(h) CFC-8 - Interests in CFC................................................................. 18
5.4 Claims against and Interests in IBF Hotel...................................................... 18
(a) IBF Hotel-1 - Secured IBF Claim.......................................................... 18
(b) IBF Hotel-2 - Secured Claims against IBF Hotel other than Secured IBF Claims............. 18
(c) IBF Hotel-3 - Other Priority Claims against IBF Hotel.................................... 19
iii
(d) IBF Hotel-4 - General Unsecured Claims against IBF Hotel................................. 19
(e) IBF Hotel-5 - Non-Debtor Affiliate Claims/Intercompany Claims by IBF..................... 19
(f) IBF Hotel-6 - Private Securities Claims against IBF Hotel................................ 19
(g) IBF Hotel 7 - Interests in IBF Hotel.................................................... 19
5.5 Special Provision Regarding Unimpaired Claims.................................................. 19
5.6 Claims of SEC not Addressed by the Plan........................................................ 19
5.7 Special Provisions Concerning Claims under SLC Bonds........................................... 20
ARTICLE VI ACCEPTANCE OR REJECTION OF THE PLAN................................................................... 20
6.1 Acceptance by Impaired Classes................................................................. 20
6.2 Presumed Acceptances by Unimpaired Classes..................................................... 20
6.3 Classes Deemed to have Rejected the Plan....................................................... 21
6.4 Summary of Classes Voting on the Plan.......................................................... 21
6.5 Confirmation Pursuant to Section 1129(b); Cramdown............................................. 21
6.6 Confirmability, Severability of Plan........................................................... 21
ARTICLE VII MEANS OF IMPLEMENTATION OF THE PLAN.................................................................. 21
7.1 Implementation of the Plan..................................................................... 21
7.2 Substantive Consolidation...................................................................... 21
7.3 Condition to Substantive Consolidation of IBF Hotel............................................ 22
7.4 Order Granting Substantive Consolidation....................................................... 22
7.5 Certain Agreements between IBF and the Fund Debtors............................................ 22
7.6 Assignment of Interest Guarantee Claims........................................................ 23
7.7 Compromise and Settlement...................................................................... 23
7.8 Cancellation of Existing Securities, Instruments and Agreements................................ 23
7.9 Corporate Action............................................................................... 23
7.10 Disputed Claims Reserve........................................................................ 23
7.11 Expense Reserve................................................................................ 24
7.12 Wind Up and Dissolution........................................................................ 24
7.13 Taxes and Tax Reporting........................................................................ 24
7.14 Terms of Injunctions or Stays.................................................................. 26
7.15 Further Assurances............................................................................. 26
7.16 Effects of Appeal.............................................................................. 26
ARTICLE VIII LIQUIDATING LLCs.................................................................................... 26
8.1 Formation of Liquidating LLCs; Liquidating LLC Agreements...................................... 26
8.2 Purpose of Liquidating LLCs.................................................................... 26
8.3 Transfer of Assets to Liquidating LLCs......................................................... 27
8.4 Membership Interests in Liquidating LLCs....................................................... 27
8.5 Non Transferability of Membership Interests.................................................... 27
8.6 Management, Operation of Liquidating LLCs...................................................... 27
8.7 Investments by Liquidating LLCs................................................................ 28
8.8 Preservation of Causes of Action............................................................... 29
8.9 Escrowed Amount; Holdback...................................................................... 29
8.10 Escrow Commission Claims....................................................................... 29
8.11 Costs of Administration........................................................................ 29
8.12 Compensation of Liquidating Agents/Liquidating Committee....................................... 29
8.13 Hiring of Employees; Retention of Professionals................................................ 29
8.14 Termination of Liquidating LLCs................................................................ 29
8.15 Discharge of Liquidating Agents/Liquidating Committees......................................... 29
ARTICLE IX PROVISIONS GOVERNING DISTRIBUTIONS.................................................................... 30
9.1 Disbursing Agent............................................................................... 30
9.2 Initial Distributions/Reserve Accounts......................................................... 30
9.3 Subsequent Distributions/Reports............................................................... 30
9.4 Delivery of Distributions...................................................................... 31
9.5 Means of Cash Distributions.................................................................... 31
9.6 No Distributions Pending Allowance............................................................. 31
iv
9.7 Distributions after Allowance.................................................................. 31
9.8 Interim Distributions from Expense Reserve..................................................... 31
9.9 Dissolution of Disputed Claims Reserve......................................................... 32
9.10 Setoff Rights.................................................................................. 32
9.11 Surrender of Notes and Related Certificates.................................................... 32
9.12 Unclaimed Distributions........................................................................ 32
9.13 Fractional Shares.............................................................................. 32
9.14 Minimum Cash Distributions..................................................................... 32
9.15 Final Distributions............................................................................ 33
ARTICLE X ALLOWANCE/DISALLOWANCE OF CLAIMS....................................................................... 33
10.1 Claims Administration.......................................................................... 33
10.2 Estimation of Disputed Claims.................................................................. 33
10.3 Interest on Claims............................................................................. 33
10.4 Voting and Objections.......................................................................... 33
10.5 Treatment of Debtor Intercompany Claims........................................................ 33
10.6 Professional Claims and Committee Fees......................................................... 34
10.7 Other Administrative Claims.................................................................... 34
ARTICLE XI EXECUTORY CONTRACTS AND UNEXPIRED LEASES.............................................................. 35
11.1 Rejection of Contracts and Leases.............................................................. 35
11.2 Effect of Rejection............................................................................ 35
11.3 Assumption of Specific Contracts and Leases.................................................... 35
11.4 Insurance Policies............................................................................. 35
11.5 Cure of Defaults............................................................................... 35
ARTICLE XII EFFECT OF CONFIRMATION............................................................................... 36
12.1 Exculpation; Limitation of Liability........................................................... 36
12.2 Injunction..................................................................................... 36
ARTICLE XIII CONDITIONS PRECEDENT................................................................................ 36
13.1 Conditions to Effective Date................................................................... 36
13.2 Waiver of Conditions........................................................................... 37
13.3 Effect of Failure of Conditions................................................................ 37
ARTICLE XIV RETENTION OF JURISDICTION............................................................................ 37
14.1 Withdrawal of Reference by the District Court.................................................. 37
14.2 Retention of Jurisdiction by the Bankruptcy Court.............................................. 37
14.3 Jurisdiction over Certain Disputes Involving IBF Hotel......................................... 38
ARTICLE XV MISCELLANEOUS PROVISIONS.............................................................................. 38
15.1 Modification and Amendments.................................................................... 38
15.2 Binding Effect; Successors and Assigns......................................................... 38
15.3 Exclusivity.................................................................................... 38
15.4 Revocation, Withdrawal or Non Consummation..................................................... 39
15.5 Termination of Committee....................................................................... 39
15.6 Notices........................................................................................ 39
15.7 Severability of Plan Provisions................................................................ 40
15.8 Fees of the U.S. Trustee....................................................................... 40
15.9 Filing of Plan Documents/Exhibits.............................................................. 40
15.10 Governing Law; Construction.................................................................... 40
v
PREAMBLE
Arthur J. Steinberg, Investment Company Act trustee (the "Trustee")(1)
of debtors and debtors in possession IBF Collateralized Finance Corporation
("CFC") and IBF VI-Secured Lending Corporation ("SLC"), as the "proponent of the
plan" within the meaning of section 1129 of the Bankruptcy Code, proposes the
following Joint Liquidating Plan of Reorganization (the "Plan") on behalf of CFC
and SLC and with respect to InterBank Funding Corp. ("IBF") and IBF Premier
Hotel Group, Inc. ("IBF Hotel" and, with CFC, SLC and IBF, the "Debtors").
The Plan provides for the orderly liquidation of all of the property of
the Debtors, and provides for the distribution of the net proceeds to certain of
the Debtors' creditors. Initial distributions will be made on or about the
Effective Date of the Plan. The Plan contemplates the establishment of two
Liquidating LLCs, one to administer the assets of IBF and the other to
administer the assets of CFC, SLC and, provided certain claims against it do not
exceed a specified threshold, IBF Hotel. Assets not distributed on or about the
Effective Date will be administered by the Liquidating LLCs, which will, inter
alia, (a) liquidate investment assets over time, in certain instances holding
such assets for a period of time or using available cash to make limited
additional investments in such assets in order to maximize the value thereof,
(b) administer claims and resolve disputed claims, (c) pursue causes of action
on the Estates' behalf and (d) wind-up the affairs of the Debtors and certain
Non-Debtor Affiliates. The Plan contemplates that the Liquidating LLCs will be
operated in a limited capacity for up to five (5) years, under the jurisdiction
of the United States District Court for the Southern District of New York in
Securities and Exchange Commission v. IBF Collateralized Finance Corporation et
al., Case No. 02-CV-5713-JSM. The Bankruptcy Court shall retain limited
jurisdiction principally to administer claims and consider any causes of action
brought on the Estates' behalf by the Trustee. The affairs of each Liquidating
LLC will be managed by a Liquidating Agent, the Trustee, and monitored by a
Liquidating Committee, comprised of those members of the Official Committee of
Unsecured Creditors herein who are receiving membership interests in a
Liquidating LLC under the Plan and who wish to continue serving in such a
capacity. The Plan contemplates that the Liquidating LLCs will make interim
distributions approximately every one hundred and eighty (180) days, at the
Liquidating Agent's discretion and provided that there are funds available. The
Plan requires that the Trustee file a report with the District Court detailing
the source and amount of any distributions not less than twenty (20) days prior
to the date of each proposed distribution, and gives interested parties an
opportunity to object, with objections to be resolved by the District Court.
Under section 1125(b) of the Bankruptcy Code, a vote to accept or
reject the Plan cannot be solicited from the holders of Claims or Interests
entitled to vote until such time as the Disclosure Statement has been approved
by the Bankruptcy Court and distributed to such holders. In the Debtors' Chapter
11 cases, the Disclosure Statement was approved by the Bankruptcy Court by order
dated June 26, 2003, and has been distributed, with the Plan, to all parties
entitled to vote on the Plan. Reference is made to the Disclosure Statement for
a discussion of the Debtors' history, businesses, properties, operations,
projections, risk factors, a summary and analysis of the Plan, and certain other
related matters. ALL HOLDERS OF CLAIMS OR INTERESTS ENTITLED TO VOTE ON THE PLAN
ARE ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE STATEMENT PRIOR TO VOTING.
Subject to the restrictions and requirements in section 1127 of the
Bankruptcy Code, Bankruptcy Rule 3019, and the Plan, the Trustee reserves the
right to alter, amend, modify, revoke or withdraw the Plan with respect to each
Debtor prior to its substantial consummation, pursuant to the provisions of
Section 15.1 of the Plan.
- ------------------------
(1) By order dated December 5, 2002, on motion of the SEC in the SEC
Litigation, the District Court appointed Mr. Steinberg as Investment
Company Act trustee for CFC, SLC and their respective subsidiaries.
Pursuant to such order, the Trustee assumed managerial responsibility for
CFC and SLC. The Trustee has not been appointed "trustee" per se in the
Chapter 11 Cases pursuant to sections 701 or 1104 of the Bankruptcy Code,
nor is he serving as a "trustee" or "examiner" pursuant to sections 704 or
1106 of the Bankruptcy Code. Rather, CFC and SLC are continuing to manage
their affairs as debtors in possession pursuant to sections 1107 and 1108
of the Bankruptcy Code, under the Trustee's supervision and control.
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
1.1 SCOPE OF DEFINITIONS.
For purposes of the Plan, all capitalized terms used but not defined
herein shall have the meanings set forth below. Any term not defined herein, but
defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning
ascribed in the Bankruptcy Code or the Bankruptcy Rules, as applicable. Whenever
it appears appropriate from the context, each term stated in the singular or the
plural includes the singular and the plural, and each pronoun stated in the
masculine, feminine or neuter includes the masculine, feminine and the neuter.
1.2 DEFINED TERMS.
1.2.1. "Administrative Claim" shall mean a Claim for payment
of an administrative expense of a kind specified in section 503(b) of
the Bankruptcy Code and entitled to priority pursuant to section
507(a)(1) of the Bankruptcy Code, including but not limited to the
actual, necessary costs and expenses incurred after each Debtor's
respective Petition Date of preserving such Debtor's Estate and
operating the business of such Debtor, including wages, salaries or
commissions for services provided after such Debtor's Petition Date,
Professional Claims, Committee Fees, Claims arising under section
365(g)(2)(A) or section 503(b)(3) of the Bankruptcy Code, all fees and
charges assessed against the Estates under chapter 123 of title 28,
United States Code, and Administrative Tax Claims; subject, in all
cases, to the right of any party in interest to contest whether any
particular Claim is entitled to administrative priority.
1.2.2. "Administrative Tax Claim" shall mean a Claim by a
governmental unit with respect to a tax or duty incurred by a Debtor
after its Petition Date that is an administrative expense of the kind
specified in section 503(b) of the Bankruptcy Code and entitled to
priority pursuant to section 507(a)(1) of the Bankruptcy Code.
1.2.3. "Affiliate" (and derivatives thereof, such as
affiliated) shall have the meaning specified in section 101(2) of the
Bankruptcy Code.
1.2.4. "AIH" shall mean IBF V-Alternative Investment
Holdings LLC, a Delaware limited liability company.
1.2.5. "Allowed Claim" shall mean a Claim or any portion
thereof, to the extent not already paid, (a) that has been allowed by a
Final Order of the Bankruptcy Court; or (b) with respect to which, on
or before the Effective Date, (i) no proof of claim has been Filed with
the Bankruptcy Court and (ii) the liquidated and noncontingent amount
of such Claim is Scheduled, other than a Claim Scheduled at zero or as
disputed; or (c) with respect to which (i) a proof of claim or request
for payment pursuant to section 503(b) of the Bankruptcy Code has been
deemed timely-Filed with the Bankruptcy Court pursuant to the
Bankruptcy Code, any Final Order of the Bankruptcy Court, the Plan or
other applicable bankruptcy law, and has been Filed in a
non-contingent, liquidated amount or, if Filed as contingent or
unliquidated, has subsequently become non-contingent and liquidated or
has otherwise been estimated by a Final Order of the Bankruptcy Court
pursuant to section 502(c) of the Bankruptcy Code or reduced to a
fixed, liquidated amount by agreement of the Debtors and the holder of
such Claim, and (ii) either no objection to such Claim's allowance has
been Filed within the periods of limitation fixed by the Bankruptcy
Code, any order of the Bankruptcy Court or the Plan or any objection to
its allowance has been settled or withdrawn, or has been denied by a
Final Order of the Bankruptcy Court; or (d) that is expressly allowed
in the Plan.
1.2.6. "Allowed Interest" shall mean an Interest (a) as to
which either no objection to its allowance has been Filed within the
periods of limitation fixed by the Bankruptcy Code, any order of the
Bankruptcy Court or the Plan or any objection to its allowance has been
settled or withdrawn, or has been denied by a Final Order of the
Bankruptcy Court, or (b) that is expressly allowed in the Plan.
2
1.2.7. "Assets" shall mean (a) any and all assets or
property of the Estates, including without limitation ownership
interests in other entities, whether in the form of stock ownership,
partnership interests, participations in joint ventures or otherwise,
plus (b) for purposes hereof, the Escrowed Amount.
1.2.8. "Avoidance Action" shall mean any Cause of Action
arising under sections 506, 510, 544, 545, 546, 547, 548, 549, 550, 551
or 553 of the Bankruptcy Code
1.2.9. "Ballot"shall mean each of the ballot or master
ballot forms distributed with the Disclosure Statement to the holders
of Claims in Classes entitled to vote to accept or reject the Plan.
1.2.10. "Bankruptcy Code" shall mean the Bankruptcy Reform
Act of 1978, as amended and codified in title 11 of the United States
Code, 11 U.S.C. Sections. 101-1330.
1.2.11. "Bankruptcy Court" shall mean the United States
Bankruptcy Court for the Southern District of New York, or such other
court as may have jurisdiction over the Chapter 11 Cases.
1.2.12. "Bankruptcy Rules" shall mean, collectively, the
Federal Rules of Bankruptcy Procedure and the Official Bankruptcy
Forms, as promulgated under section 2075 of title 28 of the U.S. Code,
and the Local Rules of the Bankruptcy Court, as applicable to the
Chapter 11 Cases, as in effect on each Debtor's respective Petition
Date, together with all amendments to the extent applicable to such
Chapter 11 Case.
1.2.13. "Bar Date" shall mean, with respect to all Claims
other than Administrative Claims, 5:00 p.m. (prevailing Eastern time)
on May 30, 2003, or such other date as may be designated by the
Bankruptcy Court as the last date for filing proofs of claims.
1.2.14. "Business Day" shall mean any day, excluding
Saturdays, Sundays and Legal Holidays, on which commercial banks are
open for business in New York City.
1.2.15. "Cash" shall mean legal tender of the United States.
1.2.16. "Cash-Out Claim" shall mean a General Unsecured Claim
against CFC or SLC in an amount less than or equal to $10,000, or that
has been voluntarily reduced to $10,000 by the holder of such Claim, in
either case for which the holder has made the election on the
respective Ballot to opt out of CFC-4 or SLC-4 and have such Claim
placed in CFC-5 or SLC-5, respectively.
1.2.17. "Causes of Action" shall mean any and all claims,
causes of action, suits, accounts, controversies, agreements, promises,
rights to legal or equitable remedies, and rights to indemnification or
payment, whether known or unknown, reduced to judgment, liquidated or
unliquidated, fixed or contingent, matured or unmatured, disputed or
undisputed, or asserted or assertable, directly or derivatively, in
law, equity or otherwise, by or for the benefit of any Estate,
including any Avoidance Actions.
1.2.18. "CFC" shall mean IBF Collateralized Finance
Corporation, a Delaware corporation, as a debtor and debtor in
possession in its respective Chapter 11 Case.
1.2.19. "CFC Notes" shall mean, collectively, (a) the
unsecured subordinated redeemable notes issued by CFC pursuant to that
certain confidential private placement memorandum dated May 10, 1999,
as amended, (b) the notes issued by IBF Special Purpose Corporation II,
(c) the notes issued by IBF Special Purpose Corporation III, and (d)
the notes issued by IBF Participating Income Corporation.
1.2.20. "Chapter 11 Case" shall mean, with respect to each
Debtor, the Chapter 11 case of such Debtor pending in the Bankruptcy
Court; and "Chapter 11 Cases" shall mean, collectively, the Chapter 11
Cases of all of the Debtors.
1.2.21. "Claim" shall mean, with respect to each Debtor, a
claim against such Debtor as defined
3
in section 101(5) of the Bankruptcy Code, whether or not asserted.
1.2.22. "Claims Objection Deadline" shall mean the first
Business Day that is the latest of (i) 120 days after the Effective
Date; (ii) as to a particular Claim, sixty (60) days after the filing
of a proof of claim for, or request for payment of, such Claim; or
(iii) such later date as may be established, for cause shown, by the
Bankruptcy Court or the District Court.
1.2.23. "Class" shall mean a category of Claims or Interests
under the Plan.
1.2.24. "Committee" shall mean the official committee of
unsecured creditors appointed in the Chapter 11 Cases pursuant to
section 1102(a) of the Bankruptcy Code.
1.2.25. "Committee Fees" shall mean Allowed Claims for
expenses pursuant to section 503(b)(3) of the Bankruptcy Code incurred
or to be incurred by members of the Committee in their capacity as
members of the Committee prior to the dissolution of the Committee.
1.2.26. "Confirmation" shall mean entry of the Confirmation
Order.
1.2.27. "Confirmation Date" shall mean the date of
Confirmation.
1.2.28. "Confirmation Hearing" shall mean the hearing,
pursuant to section 1129 of the Bankruptcy Code, to consider
confirmation of the Plan.
1.2.29. "Confirmation Order" shall mean the order entered by
the Bankruptcy Court confirming the Plan pursuant to section 1129 of
the Bankruptcy Code.
1.2.30. "Debtors" shall mean, collectively, IBF, CFC, SLC and
IBF Hotel, as debtors and debtors in possession in the Chapter 11 Cases
pursuant to sections 1101, 1107(a), and 1108 of the Bankruptcy Code.
1.2.31. "Debtor Intercompany Claim" shall mean any claim, as
defined in section 101(5) of the Bankruptcy Code, whether or not
asserted, by any Debtor against any Non-Debtor Affiliate.
1.2.32. "Disallowed Claim" shall mean a Claim or any portion
thereof that (a) has been disallowed by a Final Order of the Bankruptcy
Court, or (b) has not been Scheduled by the Debtors or is Scheduled at
zero or as contingent, disputed or unliquidated and as to which the Bar
Date has passed but no proof of claim has been Filed or deemed
timely-Filed with the Bankruptcy Court pursuant to the Bankruptcy Code,
the Bankruptcy Rules or any Final Order of the Bankruptcy Court.
1.2.33. "Disclosure Statement" shall mean the written
disclosure statement that relates to the Plan, as approved by the
Bankruptcy Court, as amended, modified or supplemented from time to
time.
1.2.34. "Disputed Claim" shall mean a Claim or any portion
thereof to the extent it is neither an Allowed Claim nor a Disallowed
Claim, including without limitation any Claim that (a) is not Scheduled
or Scheduled at zero or as contingent, unliquidated, or disputed, or
(b) is the subject of an application, motion, objection, complaint or
any other proceeding which seeks to disallow, subordinate or estimate
such Claim and which such application, motion, objection, complaint or
other proceeding has not been withdrawn or overruled by a Final Order
of the Bankruptcy Court.
1.2.35. "Disputed Claims Reserve" shall mean the reserve
account established on or about the Effective Date and thereafter
maintained by each Liquidating LLC, pursuant to Section 7.10 hereof.
1.2.36. "Distribution Record Date" shall mean the date fixed
by the Bankruptcy Court for determining holders of Claims who are
entitled to receive distributions under the Plan and, if no such date
is
4
fixed, the Confirmation Date.
1.2.37. "District Court" shall mean the United States
District Court for the Southern District of New York, or any other
court of competent jurisdiction exercising such jurisdiction over the
SEC Litigation.
1.2.38. "Effective Date" shall mean the first (1st) Business
Day on which all conditions to consummation of the Plan set forth in
Section 13.1 hereof have been satisfied or waived, and shall constitute
the date on which the Plan is substantially consummated.
1.2.39. "Escrow Agent" shall mean the "Agent" named in the
Escrow Agreement.
1.2.40. "Escrow Agreement" shall mean the Escrow Agreement
made and entered into as of December 17, 2001, by and between IBF and
the Escrow Agent.
1.2.41. "Escrowed Amount" shall mean all Cash and
Cash-equivalents (including accrued interest and any other accrued
income) previously held by the Escrow Agent pursuant to the Escrow
Agreement and currently held by the Trustee, as such amount is
determined as of the Effective Date.
1.2.42. "Escrow Claim" shall mean a Claim against CFC, SLC,
or both, in respect of, related to or arising under or in connection
with the holder's purchase of Notes, provided that the purchase price
paid in respect thereof was received by the Debtors after 5:00 p.m.
(prevailing Eastern time) on December 14, 2001.
1.2.43. "Escrow Commission Claims" shall mean all Causes of
Action against brokers or other parties concerning or relating to
commissions, fees or other amounts paid from proceeds received from any
holder of an Allowed Escrow Claim.
1.2.44. "Escrow Deficiency Claim" shall mean the Claim
against CFC, SLC, or both, belonging to the holder of an Allowed Claim
in CFC-3 or SLC-3 (or being held in the Disputed Claims Reserve in
respect of the holder's Disputed Claim in SLC-3 or CFC-3), in an amount
equal to such holder's Allowed Escrow Claim (or the Face Amount of such
holder's Disputed Escrow Claim), less such holder's Pro Rata share of
the Initial Escrow Distribution, less the face amount of such holder's
Escrow Note, less amounts received in respect of such holder's Pro Rata
share of the Net Escrow Commission Recovery, subject to Section 8.10
hereof. Unless specifically provided otherwise herein, Allowed Escrow
Deficiency Claims shall be treated for all purposes under the Plan
(other than for purposes of the distribution of the Initial Non-Escrow
Distribution) as Allowed Claims in CFC-4 or SLC-4, as the case may be.
1.2.45. "Escrow Note" shall mean a promissory note issued on
the Effective Date, payable by the Fund Liquidating LLC to the holder
of an Allowed Claim in SLC-3 or CFC-3 in the amount set forth in
Sections 5.2(c) or 5.3(c) hereof. Each Escrow Note shall mature on the
fifth (5th) anniversary of the Effective Date; shall accrue interest at
the rate of 3.50% per annum, compounded annually, payment of which
shall be deferred until maturity; shall be paid in full prior to any
further distributions by the Fund Liquidating LLC to the holders of
Allowed Claims in SLC-4, CFC-4 or, subject to the provisions of Section
7.3 hereof, IBF Hotel-4 (after the Initial Non-Escrow Distribution and
the distribution of Fund Membership Interests, and other than
distributions by the Fund Liquidating LLC from the Expense Reserve,
Disputed Claims Reserve or the Unclaimed Distributions Reserve, or
distributions to the Fund Liquidating LLC's members in an amount not to
exceed the estimated tax liability of such members arising as a result
of allocations of income or gain of the Fund Liquidating LLC); shall be
subject to prepayment, in whole or in part, at any time, in any amount,
without prepayment penalty, to be applied in such a manner as may be
specified by the Fund Liquidating Agent; and in each instance may, for
administrative purposes, be accounted for on the Fund Liquidating LLC's
books and records in lieu of delivery of an actual physical promissory
note to the payee thereof.
5
1.2.46. "Estate" shall mean, with respect to any Debtor, the
bankruptcy estate of such Debtor pursuant to section 541 of the
Bankruptcy Code; and "Estates" shall mean, collectively, the bankruptcy
estates of all of the Debtors pursuant to section 541 of the Bankruptcy
Code.
1.2.47. "Exhibit" when used in reference to the Plan or
Disclosure Statement, shall mean any exhibit annexed to the Plan or
Disclosure Statement, respectively.
1.2.48. "Expense Reserve" shall mean the reserve account
established on or about the Effective Date and thereafter maintained by
each Liquidating LLC, pursuant to Section 7.11 hereof.
1.2.49. "Face Amount" shall mean (a) with respect to a
Disputed or Disallowed Claim, the stated amount claimed by the holder
thereof in any proof of claim timely-Filed or deemed timely-Filed by a
Final Order of the Bankruptcy Court, and (b) with respect to an Allowed
Claim, the allowed amount thereof.
1.2.50. "File" and derivatives thereof, such as Filed or
Filing, shall mean file, filed, filing, etc., with the Bankruptcy Court
in any of the Chapter 11 Cases.
1.2.51. "Final Order" shall mean an order or judgment of the
Bankruptcy Court or other court of competent jurisdiction,
administrative agency or other tribunal, as entered on the docket in
any Chapter 11 Case or such other court or body, (a) which has not been
reversed, stayed, modified or amended, and as to which the time to
appeal, seek certiorari or move for reargument or rehearing has
expired, and no appeal, petition for certiorari, or motion for
reargument or rehearing has been timely taken, or (b) as to which any
appeal has been taken, any petition for certiorari or motion for
reargument or rehearing has been filed, and such appeal, petition or
motion has been conclusively withdrawn or resolved by the highest court
to which the order or judgment was appealed or from which certiorari,
reargument or rehearing was sought; provided, however, that the
possibility that a motion under Rule 59 or Rule 60 of the Federal Rules
of Civil Procedure, or any analogous rule under the Bankruptcy Rules,
may be filed with respect to such order shall not cause such order not
to be a final order for purposes hereof.
1.2.52. "Fund Assets" shall mean the Assets of any Fund
Debtor's Estate, and shall include, for purposes hereof, the Escrowed
Amount.
1.2.53. "Fund Debtors" shall mean CFC, SLC and, subject to
the provisions of Section 7.3 hereof, IBF Hotel. In the event that the
Trustee elects not to substantively consolidate IBF Hotel with CFC and
SLC, pursuant to Section 7.3 hereof, "Fund Debtors" shall mean only CFC
and SLC.
1.2.54. "Fund Liquidating Agent" shall mean the individual
appointed to manage the day to day affairs of the Fund Liquidating LLC.
1.2.55. "Fund Liquidating Committee" shall mean the committee
established to monitor the administration of the Fund Liquidating LLC,
pursuant to the Fund Liquidating LLC Agreement.
1.2.56. "Fund Liquidating LLC" shall mean the limited
liability company established pursuant to the Fund Liquidating LLC
Agreement to implement the Plan.
1.2.57. "Fund Liquidating LLC Agreement" shall mean the
operating agreement establishing the Fund Liquidating LLC, in
conformity with the terms of the Plan, as such operating agreement may
be amended, modified or supplemented from time to time.
1.2.58. "Fund Membership Interests" shall mean uncertificated
ownership interests in the Fund Liquidating LLC, created under, issued
pursuant to, and which shall have the rights and be subject to the
restrictions contained in, the Fund Liquidating LLC Agreement.
1.2.59. "General Unsecured Claim" shall mean a Claim that is
not an Administrative Claim,
6
Priority Tax Claim, Secured Claim, Other Priority Claim, Escrow Claim,
Cash-Out Claim, Interest Guarantee Claim, Intercompany Claim or Private
Securities Claim, and shall include any Escrow Deficiency Claim.
1.2.60. "IBF" shall mean InterBank Funding Corp., a Delaware
corporation, as a debtor and debtor in possession in its respective
Chapter 11 Case.
1.2.61. "IBF Assets" shall mean the Assets of IBF's Estate,
and shall exclude, for purposes hereof, the Escrowed Amount.
1.2.62. "IBF Liquidating Agent" shall mean the individual
appointed to manage the day to day affairs of the IBF Liquidating LLC.
1.2.63. "IBF Liquidating Committee" shall mean the committee
established to monitor the administration of the IBF Liquidating LLC,
pursuant to the IBF Liquidating LLC Agreement.
1.2.64. "IBF Liquidating LLC" shall mean the limited
liability company established pursuant to the IBF Liquidating LLC
Agreement to implement the Plan.
1.2.65. "IBF Liquidating LLC Agreement" shall mean the
operating agreement establishing the IBF Liquidating LLC, in conformity
with the terms of the Plan, as such operating agreement may be amended
modified or supplemented from time to time.
1.2.66. "IBF Membership Interests" shall mean uncertificated
ownership interests in the IBF Liquidating LLC, created under, issued
pursuant to, and which shall have the rights and be subject to the
restrictions contained in, the IBF Liquidating LLC Agreement.
1.2.67. "Impaired" when used with respect to a Claim or
Interest, shall mean impaired within the meaning of section 1124 of the
Bankruptcy Code.
1.2.68. "Initial Escrow Distribution" shall mean a portion of
the Escrowed Amount equal to the Escrowed Amount, less the Initial
Escrow Holdback, less the Initial Non-Escrow Distribution; which
portion shall be distributed to the holders of Allowed Claims in SLC-3
or CFC-3 (or transferred to the Disputed Claims Reserve in respect of
Disputed Claims in SLC-3 or CFC-3) on or about the Effective Date,
pursuant to Sections 5.2(c) and 5.3(c) hereof.
1.2.69. "Initial Escrow Holdback" shall mean a portion of the
Escrowed Amount equal to $5,000,000, which shall be treated in
accordance with Section 8.9 hereof.
1.2.70. "Initial Non-Escrow Distribution" shall mean a
portion of the Escrowed Amount equal to $3,790,000, which portion shall
be distributed to the holders of Allowed Claims in SLC-4, CFC-4 and,
subject to the provisions of Section 7.3 hereof, IBF Hotel-4 (or
transferred to the Disputed Claims Reserve in respect of Disputed
Claims in SLC-4, CFC-4 and, subject to the provisions of Section 7.3
hereof, IBF Hotel-4) on or about the Effective Date, pursuant to
Sections 5.2(d), 5.3(d), and 5.4(d) hereof.
1.2.71. "Investment Company Act" shall mean the Investment
Company Act of 1940, 15 U.S.C. Sections 80a-1 et seq., as amended.
1.2.72. "Intercompany Claim" shall mean (a) any Claim by a
Debtor against any other Debtor (excluding for purposes hereof the
Secured IBF Claim) or (b) any Non-Debtor Affiliate Claim.
1.2.73. "Interest" shall mean, when used with respect to a
Debtor, the equity securities of such Debtor (including all rights
attributable thereto) authorized, issued and outstanding as of such
Debtor's Petition Date; and "Interests" shall mean, collectively, all
of the equity securities of the Debtors (including
7
all rights attributable thereto) authorized, issued and outstanding as
of each Debtor's respective Petition Date; it being understood for
purposes hereof that Claims for the payment of principal, interest and
any similar debt obligations in respect of the Notes shall not be
deemed Interests of the Debtors.
1.2.74. "Interest Guarantee Claim" shall mean any Claim
against IBF as the guarantor of, or asserting that IBF is jointly,
severally, or secondarily liable for, fixed interest or other amounts
payable in respect of any Notes.
1.2.75. "Internal Revenue Code" shall mean the Internal
Revenue Code of 1986, as amended.
1.2.76. "Liquidating Agents" shall mean, collectively, the
Fund Liquidating Agent and the IBF Liquidating Agent.
1.2.77. "Liquidating Committees" shall mean, collectively,
the Fund Liquidating Committee and the IBF Liquidating Committee.
1.2.78. "Liquidating LLCs" shall mean, collectively, the Fund
Liquidating LLC and the IBF Liquidating LLC.
1.2.79. "Liquidating LLC Agreements" shall mean,
collectively, the Fund Liquidating LLC Agreement and the IBF
Liquidating LLC Agreement.
1.2.80. "Membership Interests" shall mean, collectively, the
Fund Membership Interests and the IBF Membership Interests.
1.2.81. "Net Escrow Commission Recovery" shall mean any
recovery by the Trustee or a Liquidating Agent in respect of any Escrow
Commission Claim, less any expenses incurred to realize such recovery,
including without limitation any litigation costs and attorney's fees
and expenses.
1.2.82. "Non-Debtor Affiliate" shall mean any Affiliate of
any Debtor that is not itself a Debtor.
1.2.83. "Non-Debtor Affiliate Claim" shall mean any Claim
against a Debtor by a Non-Debtor Affiliate of any Debtor.
1.2.84. "Notes" shall mean, collectively, the CFC Notes and
the SLC Bonds.
1.2.85. "Other Administrative Claim" shall mean an
Administrative Claim other than (a) a Professional Claim or (b) an
Administrative Claim in respect of Committee Fees.
1.2.86. "Other Priority Claim" shall mean a Claim to the
extent it is entitled to priority pursuant to section 507(a) of the
Bankruptcy Code, other than an Administrative Claim or Priority Tax
Claim.
1.2.87. "Person" shall have the meaning ascribed in section
101(41) of the Bankruptcy Code and, in any reference to a holder of a
Claim or Interest, shall include all successors, assigns or Affiliates.
1.2.88. "Petition Date" shall mean (a) with respect to IBF,
SLC or CFC, June 7, 2002, and (b) with respect to IBF Hotel, November
4, 2002.
1.2.89. "Plan" shall mean this joint liquidating plan of
reorganization, as the same may be amended, modified, supplemented or
restated from time to time.
1.2.90. "Priority Tax Claim" shall mean a Claim to the extent
such Claim is entitled to priority pursuant to section 507(a)(8) of the
Bankruptcy Code.
8
1.2.91. "Private Securities Claim" shall mean a Claim arising
from rescission of, or for damages, reimbursement or contribution with
respect to, a purchase, sale or other acquisition of a debt security of
any Debtor prior to such Debtor's Petition Date (it being understood
that Claims for the payment of principal, interest and similar debt
obligations in respect of the Notes shall not be Private Securities
Claims).
1.2.92. "Professional" shall mean any professional employed
in the Chapter 11 Cases pursuant to sections 327 or 1103 of the
Bankruptcy Code or seeking compensation or reimbursement pursuant to
section 503(b)(4) of the Bankruptcy Code.
1.2.93. "Professional Claim" shall mean a request by a
Professional for compensation or reimbursement of expenses pursuant to
section 327, 328, 330, 331, 503(b), 506 or 1103 of the Bankruptcy Code
incurred or relating to services provided after the Petition Date
through the Effective Date.
1.2.94. "Pro Rata" shall mean, when used in reference to any
Class or group of Classes, the proportion that the Face Amount of a
Claim in such Class or in any Class in such group of Classes bears to
the aggregate Face Amount of all Claims (including Disputed Claims, but
excluding Disallowed Claims) in such Class or in all Classes in such
group of Classes, unless the Plan specifically provides otherwise.
1.2.95. "Scheduled" shall mean, with respect to a Claim, that
the Claim is listed on the schedules of assets and liabilities Filed by
any of the Debtors pursuant to Bankruptcy Rule 1007(b)(1).
1.2.96. "Schedules" when used in reference to the Plan or
Disclosure Statement, shall mean any schedule annexed to the Plan or
Disclosure Statement.
1.2.97. "SEC" shall mean the U.S. Securities and Exchange
Commission.
1.2.98. "SEC Litigation" shall mean the litigation pending in
the District Court styled Securities and Exchange Commission v. IBF
Collateralized Finance Corporation et al., Case No. 02-CV-5713-JSM
(S.D.N.Y.).
1.2.99. "Secured Claim" shall mean any Claim that is secured
by a security interest in or a lien on property in which an Estate has
an interest or that is subject to setoff under section 553 of the
Bankruptcy Code, to the extent of the value of the holder's interest in
the applicable Estate's interest in such property or to the extent of
the amount subject to setoff, as applicable, as determined pursuant to
section 506(a) of the Bankruptcy Code or, in the case of setoff,
pursuant to section 553 of the Bankruptcy Code.
1.2.100. "Secured IBF Claim" shall mean the Secured Claim
asserted by IBF against IBF Hotel, Scheduled in the aggregate amount of
$9,998,072, which is held by IBF solely for the benefit of CFC, which,
by virtue of participation, holds 100% of the economic interest in the
loans underling such Claim and is entitled to any distributions under
the Plan in respect of such Claim.
1.2.101. "SLC" shall mean IBF VI-Secured Lending Corporation,
a Delaware corporation, as a debtor and debtor in possession in its
respective Chapter 11 Case.
1.2.102. "SLC Bonds" shall mean the unsecured subordinated
redeemable bonds issued by SLC pursuant to that certain prospectus
dated August 23, 2000.
1.2.103. "SLC Indenture" shall mean the indenture dated August
23, 2000, as amended, between IBF VI-Guaranteed Income Fund, as issuer,
and Continental Stock Transfer & Trust Company, as Trustee.
1.2.104. "SLC Indenture Trustee" shall mean Continental Stock
Transfer & Trust Company, in its capacity as trustee under the SLC
Indenture, or any successor trustee appointed under the SLC Indenture.
1.2.105. "Transaction Documents" shall mean, collectively, all
material definitive agreements to
9
be entered in connection with the consummation of the transactions
contemplated by the Plan, including but not limited to the Liquidating
LLC Agreements.
1.2.106. "Treasury Regulations" shall mean all final,
temporary and proposed regulations promulgated under the Internal
Revenue Code.
1.2.107. "Trustee" shall mean Arthur J. Steinberg, not
personally but solely in his capacity as the duly-appointed trustee of
CFC and SLC and their respective subsidiaries under the Investment
Company Act, having been appointed by the District Court by order
entered on December 5, 2002.
1.2.108. "Unclaimed Distributions Reserve"shall mean the
reserve account established on or about the Effective Date and
thereafter maintained by each Liquidating LLC, pursuant to Section 9.12
hereof.
1.2.109. "Unimpaired" when used with respect to a Claim or
Interest, shall mean a Claim or Interest that is not Impaired.
1.2.110. "U.S. Trustee" shall mean the U.S. Trustee appointed
pursuant to section 581 of title 28 of the U.S. Code to serve in the
Southern District of New York.
1.3 RULES OF INTERPRETATION.
For purposes of the Plan (a) any reference to a contract, instrument,
release, indenture or other agreement or document's being in a particular form
or on particular terms and conditions shall mean that such document shall be
substantially in such form or substantially on such terms and conditions, (b)
any reference in the Plan to an existing document or exhibit filed or to be
filed shall mean such document or exhibit as it may have been or may be amended,
modified or supplemented, (c) unless otherwise specified, all references herein
to Articles, Sections, Schedules and Exhibits are references to Articles,
Sections, Schedules and Exhibits of or to the Plan, (d) the words "herein,"
"hereto," "hereof," "hereunder," and other words of similar import refer to the
Plan as a whole, not to any particular section, subsection or clause, unless the
context requires otherwise, (e) captions and headings to Articles and Sections
are inserted for convenience of reference only and are not intended to be a part
of or to affect the interpretation of the Plan, and (f) the rules of
construction set forth in section 102 of the Bankruptcy Code and in the
Bankruptcy Rules are hereby incorporated by reference.
1.4 COMPUTATION OF TIME.
In computing any period of time prescribed or allowed by the Plan,
unless otherwise provided, the provisions of Bankruptcy Rule 9006(a) shall
apply.
1.5 REFERENCE TO MONETARY FIGURES.
All references in the Plan to monetary figures shall refer to lawful
currency of the United States, unless otherwise expressly provided.
1.6 EXHIBITS AND TRANSACTION DOCUMENTS.
All Exhibits, Schedules and Transaction Documents are hereby
incorporated into and are made a part of the Plan as if set forth in full in the
Plan.
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ARTICLE II
ADMINISTRATIVE CLAIMS; PRIORITY TAX CLAIMS
2.1 ADMINISTRATIVE CLAIMS.
Subject to Sections 10.6 and 10.7 hereof, on or as soon as practicable
after the later of (a) the Effective Date and (b) thirty (30) days after the
date on which such Claim becomes an Allowed Claim, each holder of an Allowed
Administrative Claim shall receive, at the Trustee's discretion, in full
satisfaction, settlement, release and discharge thereof, and in exchange
therefor, (x) Cash equal to the unpaid portion of such Allowed Claim, or (y)
such other treatment as to which the Trustee and such holder shall agree in
writing; provided, however, that any undisputed Administrative Claims with
respect to liabilities incurred in the ordinary course during the Chapter 11
Cases may, at the respective Liquidating Agent's option, be paid pursuant to the
terms of any agreements relating thereto; and provided further that payment of
Allowed Administrative Claims against IBF shall be subject to Section 7.5
hereof, which provides (i) that such payments shall be made, first, from
available IBF Assets, and second, upon exhaustion of available IBF Assets, and
subject to the absolute discretion of the Trustee, from available Fund Assets,
and (ii) that payments made from Fund Assets in respect of Allowed
Administrative Claims against IBF shall in no event exceed, in the aggregate,
$300,000; and provided further that, pursuant to Section 7.5 hereof, any
advances by CFC or SLC to IBF after their Petition Date shall be Allowed
Administrative Claims against IBF.
2.2 PRIORITY TAX CLAIMS.
On or as soon as practicable after the later of (a) the Effective Date
and (b) thirty (30) days after the date on which such Claim becomes an Allowed
Claim, each holder of an Allowed Priority Tax Claim shall receive, at the
Trustee's discretion, in full satisfaction, settlement, release and discharge
thereof, and in exchange therefor, (x) Cash equal to the unpaid portion of such
Allowed Claim, or (y) such other treatment as to which the Trustee and such
holder shall agree in writing; provided, however, that payments in respect of
Allowed Priority Tax Claims against IBF shall be subject to Section 7.5 hereof,
which provides (i) that such payments shall be made, first, from available IBF
Assets, and second, upon exhaustion of available IBF Assets, and subject to the
absolute discretion of the Trustee, from available Fund Assets, and (ii) that
payments made from Fund Assets in respect of Allowed Priority Tax Claims against
IBF shall in no event exceed, in the aggregate, $100,000.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
Pursuant to section 1122 of the Bankruptcy Code, all Claims and
Interests, other than Administrative Claims and Priority Tax Claims, are
classified as set forth below. A Claim or Interest is placed in a particular
Class for the purposes of voting on the Plan and of receiving the treatments
specified by the Plan only to the extent that such Claim or Interest is an
Allowed Claim or an Allowed Interest in that Class and such Claim or Interest
has not been paid, released, withdrawn or otherwise settled prior to the
Effective Date. In accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims have not been classified in the
Plan and shall be treated in the manner set forth in Article II above.
3.1 CLAIMS AGAINST AND INTERESTS IN IBF.
(a) IBF-1 All Secured Claims against IBF.
(b) IBF-2 All Other Priority Claims against IBF.
(c) IBF-3 All General Unsecured Claims against IBF.
All Intercompany Claims by SLC against IBF; and
All Intercompany Claims by CFC against IBF.
11
(d) IBF-4 All Interest Guarantee Claims.
(e) IBF-5 All Non-Debtor Affiliate Claims against IBF;
and All Intercompany Claims by IBF Hotel
against IBF.
(f) IBF-6 All Private Securities Claims against IBF.
(g) IBF-7 All Interests in IBF.
3.2 CLAIMS AGAINST AND INTERESTS IN SLC.
(a) SLC-1 All Secured Claims against SLC.
(b) SLC-2 All Other Priority Claims against SLC.
(c) SLC-3 All Escrow Claims against SLC.
(d) SLC-4 All General Unsecured Claims against SLC.
(e) SLC-5 All Cash-Out Claims against SLC.
(f) SLC-6 All Intercompany Claims against SLC.
(g) SLC-7 All Private Securities Claims against SLC.
(h) SLC-8 All Interests in SLC.
3.3 CLAIMS AGAINST AND INTERESTS IN CFC.
(a) CFC-1 All Secured Claims against CFC.
(b) CFC-2 All Other Priority Claims against CFC.
(c) CFC-3 All Escrow Claims against CFC.
(d) CFC-4 All General Unsecured Claims against CFC.
(e) CFC-5 All Cash-Out Claims against CFC.
(f) CFC-6 All Intercompany Claims against CFC.
(g) CFC-7 All Private Securities Claims against CFC.
(h) CFC-8 All Interests in CFC.
3.4 CLAIMS AGAINST AND INTERESTS IN IBF HOTEL.
(a) IBF HOTEL-1 Secured IBF Claim.
(b) IBF HOTEL-2 All other Secured Claims against IBF
Hotel.
(c) IBF HOTEL-3 All Other Priority Claims against IBF
Hotel.
(d) IBF HOTEL-4 All General Unsecured Claims against IBF
Hotel.
12
(e) IBF HOTEL-5 All Non-Debtor Affiliate Claims against
IBF Hotel; and All Intercompany Claims by
IBF against IBF Hotel.
(f) IBF HOTEL-6 All Private Securities Claims against IBF
Hotel.
(g) IBF HOTEL-7 All Interests in IBF Hotel.
ARTICLE IV
IDENTIFICATION OF UNIMPAIRED AND IMPAIRED CLASSES
4.1 UNIMPAIRED CLASSES.
The following Classes are Unimpaired by the Plan:
IBF-1 SLC-1 CFC-1 IBF Hotel-1
IBF-2 SLC-2 CFC-2 IBF Hotel-2
IBF Hotel-3
4.2 IMPAIRED CLASSES.
The following Classes are Impaired by the Plan:
IBF-3 SLC-3 CFC-3 IBF Hotel-4
IBF-4 SLC-4 CFC-4 IBF Hotel-5
IBF-5 SLC-5 CFC-5 IBF Hotel-6
IBF-6 SLC-6 CFC-6 IBF Hotel-7
IBF-7 SLC-7 CFC-7
SLC-8 CFC-8
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
5.1 CLAIMS AGAINST AND INTERESTS IN IBF
(a) IBF-1 - Secured Claims against IBF.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
IBF-1 shall receive, at the Trustee's discretion, in full satisfaction,
settlement, release and discharge thereof, and in exchange therefor,
(w) Cash equal to the unpaid portion of such Allowed Claim, or (x) with
respect to a holder having a first priority security interest in
collateral securing such Allowed Claim, the surrender of all such
collateral by IBF, without representation or warranty by, or recourse
against, the Trustee, the Debtors, the IBF Liquidating Agent or the IBF
Liquidating LLC, or (y) such other treatment as which will not impair
the holder of such Allowed Claim pursuant to section 1124 of the
Bankruptcy Code, or (z) such other treatment as to which the Trustee
and such holder shall agree in writing.
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(b) IBF-2 - Other Priority Claims against IBF.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
IBF-2 shall receive, at the Trustee's discretion, in full satisfaction,
settlement, release and discharge thereof, and in exchange therefor,
(x) Cash equal to the unpaid portion of such Allowed Claim, or (y) such
other treatment as which will not impair the holder of such Allowed
Claim pursuant to section 1124 of the Bankruptcy Code, or (z) such
other treatment as to which the Trustee and such holder shall agree in
writing.
(c) IBF-3 - General Unsecured Claims against IBF,
Intercompany Claims by SLC against IBF and Intercompany Claims by CFC
against IBF.
On the Effective Date, (x) the Intercompany Claims by SLC
against IBF shall be Allowed in the amount of $1,105,083, and (y) the
Intercompany Claims by CFC against IBF shall be Allowed in the amount
of $7,293,330. With respect to Claims in respect of any guarantee
(excluding, for purposes hereof, any Interest Guarantee Claims) by IBF
of obligations owed to third-party lenders by borrowers in which CFC
holds a debt or equity position junior to such lenders - including but
not limited to the Scheduled Claims of Colonial Bank, Citrus Bank,
Gorham Savings Bank, Boston Private Bank and Dillard-Weincoff, LLC in
the aggregate amount of $18,300,000, which are Scheduled as contingent,
unliquidated and, in the case of Dillard-Weincoff, LLC, disputed - the
Trustee reserves the right to dispute the validity, extent or priority
of any such Claims, and to seek appropriate reserves for the payment of
any such Claims.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
IBF-3 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, its Pro Rata share of the
IBF Membership Interests, determined by reference to all Allowed Claims
and Disputed Claims in IBF-3 and IBF-4; provided, however, that to the
extent all or any portion of an Allowed Claim in IBF-3 or IBF-4 is
determined by Final Order of the Bankruptcy Court to be of the type
described in section 726(a)(4) of the Bankruptcy Code, or constitutes a
Claim for interest accruing after IBF's Petition Date, such portion
shall not be included in the Face Amounts used to calculate Pro Rata
shares hereunder, and such portion shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan in respect thereof.
(d) IBF-4 - Interest Guarantee Claims.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
IBF-4 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, its Pro Rata share of the
IBF Membership Interests, determined by reference to all Allowed Claims
and Disputed Claims in IBF-3 and IBF-4; provided, however, that to the
extent all or any portion of an Allowed Claim in IBF-3 or IBF-4 is
determined by Final Order of the Bankruptcy Court to be of the type
described in section 726(a)(4) of the Bankruptcy Code, or constitutes a
Claim for interest accruing after IBF's Petition Date, such portion
shall not be included in the Face Amounts used to calculate Pro Rata
shares hereunder, and such portion shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan in respect thereof.
(e) IBF-5 - Non-Debtor Affiliate Claims/Intercompany
Claims by IBF Hotel.
All Claims in IBF-5 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
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(f) IBF-6 - Private Securities Claims against IBF.
All Claims in IBF-6 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan, by virtue of section 510(b) of the
Bankruptcy Code.
(g) IBF-7 - Interests in IBF.
All Interests in IBF-7 shall be cancelled, annulled or
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
5.2 CLAIMS AGAINST AND INTERESTS IN SLC
(a) SLC-1 - Secured Claims against SLC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
SLC-1 shall receive, at the Trustee's discretion, in full satisfaction,
settlement, release and discharge thereof, and in exchange therefor,
(w) Cash equal to the unpaid portion of such Allowed Claim, or (x) with
respect to a holder having a first priority security interest in
collateral securing such Allowed Claim, the surrender of all such
collateral by the Fund Debtors, without representation or warranty by,
or recourse against, the Trustee, the Debtors, the Fund Liquidating
Agent or the Fund Liquidating LLC, or (y) such other treatment as which
will not impair the holder of such Allowed Claim pursuant to section
1124 of the Bankruptcy Code, or (z) such other treatment as to which
the Trustee and such holder shall agree in writing.
(b) SLC-2 - Other Priority Claims against SLC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
SLC-2 shall receive, at the Trustee's discretion, in full satisfaction,
settlement, release and discharge thereof, and in exchange therefor,
(x) Cash equal to the unpaid portion of such Allowed Claim, or (y) such
other treatment as which will not impair the holder of such Allowed
Claim pursuant to section 1124 of the Bankruptcy Code, or (z) such
other treatment as to which the Trustee and such holder shall agree in
writing.
(c) SLC-3 - Escrow Claims against SLC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
SLC-3 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, (x) Cash in an amount
equal to such holder's Pro Rata share of the Initial Escrow
Distribution, determined by reference to all Allowed Claims and
Disputed Claims in SLC-3 or CFC-3, plus an Escrow Note payable in an
amount equal to the holder's Pro Rata share of the Initial Escrow
Holdback, as determined by reference to all Allowed Claims and Disputed
Claims in SLC-3 and CFC-3 (it being understood that, for administrative
purposes, the Fund Liquidating LLC may account for the Escrow Notes on
its books and records in lieu of delivering actual, physical promissory
notes to the payee), plus its Pro Rata share of the Net Escrow
Commission Recovery, subject to Section 8.10 hereof, determined by
reference to all Allowed Claims and Disputed Claims in SLC-3 and CFC-3,
plus, the treatment afforded in Section 5.2(d) hereof in respect of
such holder's Escrow Deficiency Claim (provided, however, that no
distribution of the Initial Non-Escrow Distribution shall be made on
account of such Escrow Deficiency Claim, and provided further that, in
the event of any distribution to such holder on account of its Pro Rata
rights in the Net Escrow Commission Recovery, the Face Amount of such
holder's Escrow Deficiency Claim shall be reduced by an equal amount),
or (y) such other treatment as to which the Trustee and such holder
shall agree in writing.
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(d) SLC-4 - General Unsecured Claims against SLC.
General Unsecured Claims against SLC that are or become
Allowed Claims shall be placed in SLC-4; provided, however, that the
holder of a General Unsecured Claim against SLC either (x) in an amount
less than or equal to $10,000, or (y) that agrees to reduce the amount
of such Claim to $10,000, shall have the option of making a one-time
election on the respective Ballot to opt-out of SLC-4 and have such
Claim become a Cash-Out Claim and be placed in SLC-5, in which event
the election shall be irrevocable and shall prevent and estop the
holder from any recovery in SLC-4 in respect of such Claim.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
SLC-4 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, its Pro Rata share of the
Initial Non-Escrow Distribution, plus its Pro Rata share of the Fund
Membership Interests, in each case where such Pro Rata share is
determined by reference to all Allowed Claims and Disputed Claims in
the following Classes: SLC-4, CFC-4 and, subject to Section 7.3 hereof,
IBF Hotel-4; provided, however, that to the extent all or any portion
of an Allowed Claim in SLC-4, CFC-4 or, subject to Section 7.3 hereof,
IBF Hotel-4 is determined by Final Order of the Bankruptcy Court to be
of the type described in section 726(a)(4) of the Bankruptcy Code, or
constitutes a Claim for interest accruing after SLC's Petition Date,
such portion shall not be included in the Face Amounts used to
calculate such Pro Rata shares, and such portion shall be cancelled,
annulled and extinguished on the Effective Date and the holders thereof
shall receive nothing under the Plan in respect thereof; and provided
further, that, as part of any settlement or compromise with any holder
of securities issued by AIH permitted under Section 7.7 hereof, the
Trustee may offer to treat such holder as the holder of an Allowed
Claim in SLC-4, SLC-5, CFC-4 or CFC-5, solely for purposes of
participating in distributions under the Plan.
(e) SLC-5 - Cash-Out Claims against SLC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
SLC-5 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, Cash in an amount equal to
twenty percent (20%) of the Face Amount of such Allowed Claim.
(f) SLC-6 - Intercompany Claims against SLC.
All Claims in SLC-6 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
(g) SLC-7 - Private Securities Claims against SLC.
All Claims in SLC-7 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan, by virtue of section 510(b) of the
Bankruptcy Code.
(h) SLC-8 - Interests in SLC.
All Interests in SLC-8 shall be cancelled, annulled or
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
5.3 CLAIMS AGAINST AND INTERESTS IN CFC
(a) CFC-1 - Secured Claims against CFC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
CFC-1 shall receive, at the Trustee's discretion, in full satisfaction,
settlement, release and discharge thereof, and in
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exchange therefor, (w) Cash equal to the unpaid portion of such Allowed
Claim, or (x) with respect to a holder having a first priority security
interest in collateral securing such Allowed Claim, the surrender of
all such collateral by the Fund Debtors, without representation or
warranty by, or recourse against, the Trustee, the Debtors, the Fund
Liquidating Agent or the Fund Liquidating LLC, or (y) such other
treatment as which will not impair the holder of such Allowed Claim
pursuant to section 1124 of the Bankruptcy Code, or (z) such other
treatment as to which the Trustee and such holder shall agree in
writing.
(b) CFC-2 - Other Priority Claims against CFC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
CFC-2 shall receive, at the Trustee's discretion, in full satisfaction,
settlement, release and discharge thereof, and in exchange therefor,
(x) Cash equal to the unpaid portion of such Allowed Claim, or (y) such
other treatment as which will not impair the holder of such Allowed
Claim pursuant to section 1124 of the Bankruptcy Code, or (z) such
other treatment as to which the Trustee and such holder shall agree in
writing.
(c) CFC-3 - Escrow Claims against CFC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
CFC-3 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, (x) Cash in an amount
equal to such holder's Pro Rata share of the Initial Escrow
Distribution, determined by reference to all Allowed Claims and
Disputed Claims in SLC-3 or CFC-3, plus an Escrow Note payable in an
amount equal to the holder's Pro Rata share of the Initial Escrow
Holdback, as determined by reference to all Allowed Claims and Disputed
Claims in SLC-3 and CFC-3 (it being understood that, for administrative
purposes, the Fund Liquidating LLC may account for the Escrow Notes on
its books and records in lieu of delivering actual, physical promissory
notes to the payee), plus its Pro Rata share of the Net Escrow
Commission Recovery, subject to Section 8.10 hereof, determined by
reference to all Allowed Claims and Disputed Claims in SLC-3 and CFC-3,
plus, the treatment afforded in Section 5.3(d) hereof in respect of
such holder's Escrow Deficiency Claim (provided, however, that no
distribution of the Initial Non-Escrow Distribution shall be made on
account of such Escrow Deficiency Claim, and provided further that, in
the event of any distribution to such holder on account of its Pro Rata
rights in the Net Escrow Commission Recovery, the Face Amount of such
holder's Escrow Deficiency Claim shall be reduced by an equal amount),
or (y) such other treatment as to which the Trustee and such holder
shall agree in writing.
(d) CFC-4 - General Unsecured Claims against CFC.
General Unsecured Claims against CFC that are or become
Allowed Claims shall be placed in CFC-4; provided, however, that the
holder of a General Unsecured Claim against CFC either (x) in an amount
less than or equal to $10,000, or (y) that agrees to reduce the amount
of such Claim to $10,000, shall have the option of making a one-time
election on the respective Ballot to opt-out of CFC-4 and have such
Claim become a Cash-Out Claim and be placed in CFC-5, in which event
the election shall be irrevocable and shall prevent and estop the
holder from any recovery in CFC-4 in respect of such Claim.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
CFC-4 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, its Pro Rata share of the
Initial Non-Escrow Distribution, plus its Pro Rata share of the Fund
Membership Interests, in each case where such Pro Rata share is
determined by reference to all Allowed Claims and Disputed Claims in
the following Classes: SLC-4, CFC-4 and, subject to Section 7.3 hereof,
IBF Hotel-4; provided, however, that to the extent all or any portion
of an Allowed Claim in SLC-4, CFC-4 or, subject to Section 7.3 hereof,
IBF Hotel-4 is determined by Final Order of the Bankruptcy Court to be
of the type described in section 726(a)(4) of the Bankruptcy Code, or
constitutes a Claim for interest accruing after CFC's Petition Date,
such portion shall not be included in the Face Amounts used to
calculate such Pro Rata shares, and
17
such portion shall be cancelled, annulled and extinguished on the
Effective Date and the holders thereof shall receive nothing under the
Plan in respect thereof; and provided further, that, as part of any
settlement or compromise with any holder of securities issued by AIH
permitted under Section 7.7 hereof, the Trustee may offer to treat such
holder as the holder of an Allowed Claim in SLC-4, SLC-5, CFC-4 or
CFC-5, solely for purposes of participating in distributions under the
Plan.
(e) CFC-5 - Cash-Out Claims against CFC.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in
CFC-5 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, Cash in an amount equal to
twenty percent (20%) of the Face Amount of such Allowed Claim.
(f) CFC-6 - Intercompany Claims against CFC.
All Claims in CFC-6 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
(g) CFC-7 - Private Securities Claims against CFC.
All Claims in CFC-7 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan, by virtue of section 510(b) of the
Bankruptcy Code.
(h) CFC-8 - Interests in CFC.
All Interests in CFC-8 shall be cancelled, annulled or
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
5.4 CLAIMS AGAINST AND INTERESTS IN IBF HOTEL
(a) IBF Hotel-1 - Secured IBF Claim.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, CFC, as the beneficial holder of the
Secured IBF Claim by virtue of its 100% participation, shall receive,
at the Trustee's discretion, in full satisfaction, settlement, release
and discharge thereof, and in exchange therefor, (w) Cash equal to the
unpaid portion of such Allowed Claim, or (x) if and to the extent the
lien securing the Secured IBF Claim is a first priority lien in
property of IBF Hotel, the surrender of all such property by IBF Hotel,
without representation or warranty by, or recourse against, the Trustee
or the Fund Liquidating Agent, or (y) such other treatment as which
will not impair the holder of such Allowed Claim pursuant to section
1124 of the Bankruptcy Code, or (z) such other treatment as to which
the Trustee and such holder shall agree in writing.
(b) IBF Hotel-2 - Secured Claims against IBF Hotel other
than Secured IBF Claims.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in IBF
Hotel-2 shall receive, at the Trustee's discretion, in full
satisfaction, settlement, release and discharge thereof, and in
exchange therefor, (w) Cash equal to the unpaid portion of such Allowed
Claim, or (x) with respect to a holder having a first priority security
interest in collateral securing such Allowed Claim, the surrender of
all such collateral by the Debtors, without representation or warranty
by, or recourse against, the Trustee, the Debtors, the Fund Liquidating
Agent or the Fund Liquidating LLC, or (y) such other treatment as which
will not impair the holder of such Allowed Claim pursuant to section
1124 of the Bankruptcy Code, or (z) such other treatment as to which
the Trustee and such holder shall agree in writing.
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(c) IBF Hotel-3 - Other Priority Claims against IBF
Hotel.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in IBF
Hotel-3 shall receive, at the Trustee's discretion, in full
satisfaction, settlement, release and discharge thereof, and in
exchange therefor, (x) Cash equal to the unpaid portion of such Allowed
Claim, or (y) such other treatment as which will not impair the holder
of such Allowed Claim pursuant to section 1124 of the Bankruptcy Code,
or (z) such other treatment as to which the Trustee and such holder
shall agree in writing.
(d) IBF Hotel-4 - General Unsecured Claims against IBF
Hotel.
On or as soon as practicable after the later of (a) the
Effective Date and (b) thirty (30) days after the date on which such
Claim becomes an Allowed Claim, each holder of an Allowed Claim in IBF
Hotel-4 shall receive, in full satisfaction, settlement, release and
discharge thereof, and in exchange therefor, its Pro Rata share of the
Initial Non-Escrow Distribution, plus its Pro Rata share of the Fund
Membership Interests, in each case where such Pro Rata share is
determined by reference to all Allowed Claims and Disputed Claims in
the following Classes: SLC-4, CFC-4 and, subject to Section 7.3 hereof,
IBF Hotel-4; provided, however, that to the extent all or any portion
of an Allowed Claim in SLC-4, CFC-4 or, subject to Section 7.3 hereof,
IBF Hotel-4 is determined by Final Order of the Bankruptcy Court to be
of the type described in section 726(a)(4) of the Bankruptcy Code, or
constitutes a Claim for interest accruing after IBF Hotel's Petition
Date, such portion shall not be included in the Face Amounts used to
calculate such Pro Rata shares, and such portion shall be cancelled,
annulled and extinguished on the Effective Date and the holders thereof
shall receive nothing in respect thereof.
(e) IBF Hotel-5 - Non-Debtor Affiliate
Claims/Intercompany Claims by IBF.
All Claims in IBF Hotel-5 shall be cancelled, annulled and
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
(f) IBF Hotel-6 - Private Securities Claims against IBF
Hotel.
All Claims in IBF Hotel-6 shall be cancelled, annulled or
extinguished on the Effective Date and holders thereof shall receive
nothing under the Plan, by virtue of section 510(b) of the Bankruptcy
Code.
(g) IBF Hotel 7 - Interests in IBF Hotel.
All Interests in IBF Hotel-7 shall be cancelled, annulled or
extinguished on the Effective Date and the holders thereof shall
receive nothing under the Plan.
5.5 SPECIAL PROVISION REGARDING UNIMPAIRED CLAIMS.
Except as otherwise provided in the Plan, nothing shall affect the
Trustee's or any Debtor's rights and defenses, both legal and equitable, with
respect to any Unimpaired Claim, including but not limited to all rights with
respect to legal and equitable defenses to setoffs or recoupments.
5.6 CLAIMS OF SEC NOT ADDRESSED BY THE PLAN.
The various claims of the SEC against the Debtors and Mr. Hershon in
the SEC Litigation, including but not limited to claims for penalties or
injunctive relief, are not addressed by the Plan. The resolution of those claims
is a condition precedent to the Effective Date, pursuant to Section 13.1 hereof.
Any such resolution must be acceptable to the SEC and the Trustee, and is
subject to approval by the District Court. It is anticipated that any resolution
may include injunctive relief. The Trustee does not expect that any settlement
with the SEC will have adverse monetary consequences for the holders of Notes
because (i) the SEC is not seeking civil penalties against CFC or SLC, and (ii)
while the SEC is seeking disgorgement, the disgorgement remedy is generally for
the benefit of investors.
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5.7 SPECIAL PROVISIONS CONCERNING CLAIMS UNDER SLC BONDS
Any individual proof of claim by a holder of an SLC Bond on account of
a Claim under or evidenced by an SLC Bond, with respect to which SLC Bond a
proof of claim has been deemed Filed or Filed by the SLC Indenture Trustee,
shall be disallowed by operation of the Plan. Instead, one Claim will be allowed
in the name of the SLC Indenture Trustee for the SLC Bonds, and the SLC
Indenture Trustee will be deemed to be the sole holder of any and all Allowed
Claims under or evidenced by the SLC Bonds issued under the SLC Indenture.
To the extent permitted under the terms of the SLC Indenture, The SLC
Indenture Trustee shall be entitled to retain and hold back from distributions
to the holders of SLC Bonds under the Plan an amount sufficient to satisfy any
Claim of the SLC Indenture Trustee secured by the terms of the SLC Indenture and
not previously paid in full (which Claims presently consist of unpaid fees and
expenses of the SLC Indenture Trustee and its attorneys accrued through April
30, 2003, in the amount of $48,756.37 - comprised of (a) pre-petition fees and
expenses of the SLC Indenture Trustee of $19,281.43, (b) post-petition fees and
expenses of the SLC Indenture Trustee of $7,253.60, and (c) post-petition
attorney's fees and expenses of $22,221.34 - plus such fees and expenses as may
be incurred by the SLC Indenture Trustee and his attorneys from May 1, 2003
through and including the Effective Date); provided, however, that any party in
interest, including without limitation the Trustee or any holder of SLC Bonds,
may object to such amounts being retained or held back by the SLC Indenture
Trustee as being inconsistent with the terms of the SLC Indenture at any time,
prior to 4:00 p.m. (prevailing Eastern time) on August 7, 2003. To be
considered, such objections must: (i) be in writing, (ii) state the name and
address of the objecting party and the amount and nature of the claim or
interest of such party; (iii) state with particularity the legal and factual
bases of any objection under the terms of the SLC Indenture; (iv) conform to the
Bankruptcy Rules and Local Rules; and (v) be filed with the Bankruptcy Court,
together with proof of service, electronically, in accordance with General Order
M-242 (General Order M-242 and the User's Manual for the Electronic Case Filing
System can be found at the Bankruptcy Court's official website
(www.nsyb.uscourts.gov) by registered users of the Bankruptcy Court's case
filing system and, by all other parties in interest, on a 3.5 inch disk,
preferably in Portable Document Format (PDF), WordPerfect or any other
Windows-based word processing format (with a hard copy delivered to Chambers)
and served in accordance with General Order M-242, so as to be actually received
not later 4:00 p.m. (prevailing Eastern time) on August 7, 2003, by (i) counsel
to the SLC Indenture Trustee, Orrick, Herrington & Sutcliffe LLP, 666 Fifth
Ave., New York, NY 10103, Attn: Arnold Gulkowitz, and (ii) the parties set forth
in Section 15.6 hereof. Objections not timely filed and served in such manner
shall not be considered by the Bankruptcy Court.
ARTICLE VI
ACCEPTANCE OR REJECTION OF THE PLAN
6.1 ACCEPTANCE BY IMPAIRED CLASSES
Pursuant to section 1126(c) of the Bankruptcy Code, and except as
provided in section 1126(e) of the Bankruptcy Code, an Impaired Class of Claims
shall have accepted the Plan if the Plan is accepted by the holders of at least
two-thirds (2/3) in dollar amount and more than one-half (1/2) in number of the
Allowed Claims of such Class that voted. Pursuant to section 1126(d) of the
Bankruptcy Code, and except as provided in section 1126(e) of the Bankruptcy
Code, a Class of Interests shall have accepted the Plan if the Plan is accepted
by the holders of at least two-thirds (2/3) in amount of the Allowed Interests
of such Class that voted.
6.2 PRESUMED ACCEPTANCES BY UNIMPAIRED CLASSES.
The Classes identified in Section 4.1 hereof are Unimpaired under the
Plan. Hence, under section 1126(f) of the Bankruptcy Code, the holders of Claims
in those Classes are conclusively presumed to have accepted the Plan, and votes
in favor of or against the Plan in respect of such Claims will not be solicited.
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6.3 CLASSES DEEMED TO HAVE REJECTED THE PLAN.
The Classes identified in Section 4.2 hereof are Impaired under the
Plan. The holders of Claims or Interests in IBF-4 (by virtue of the assignment
of such Claims to the Fund Liquidating LLC pursuant to Section 7.6 hereof),
IBF-5, IBF-6, IBF-7, SLC-6, SLC-7, SLC-8, CFC-6, CFC-7, CFC-8, IBF Hotel-5, IBF
Hotel-6 and IBF Hotel-7, are not entitled to receive or retain any property in
respect thereof under the Plan. Hence, under section 1126(g) of the Bankruptcy
Code, such holders are conclusively presumed to have rejected the Plan, and
votes in favor of or against the Plan in respect of such Claims or Interests
will not be solicited.
6.4 SUMMARY OF CLASSES VOTING ON THE PLAN.
As a result of Sections 6.2 and 6.3 above, votes in favor of or against
the Plan will be solicited only from the holders of Claims or Interests in the
following Classes:
IBF-3 SLC-3 CFC-3 IBF Hotel-4
SLC-4 CFC-4
SLC-5 CFC-5
6.5 CONFIRMATION PURSUANT TO SECTION 1129(b); CRAMDOWN.
If all of the requirements for confirmation are met as set forth in
section 1129(a) of the Bankruptcy Code except subsection (8) thereof, the
Trustee may, at his discretion, request that the Plan be confirmed pursuant to
section 1129(b) of the Bankruptcy Code, notwithstanding the requirements of
subsection (8) thereof, with respect to any Debtor, on the basis that the Plan
is fair and equitable, and does not discriminate unfairly, with respect to each
non-accepting, impaired Class, and, if necessary, the Trustee may, at the
Confirmation Hearing, alter the treatment of any such Class to satisfy the
requirements of section 1129(b) of the Bankruptcy Code with respect to such
Class.
6.6 CONFIRMABILITY, SEVERABILITY OF PLAN.
The requirements of section 1129 of the Bankruptcy Code must be
satisfied separately with respect to (a) IBF and (b) CFC, SLC and, subject to
Section 7.3 hereof, IBF-Hotel. A determination by the Bankruptcy Court that the
Plan, as it applies to a Debtor, is not confirmable pursuant to section 1129 of
the Bankruptcy Code shall not limit or affect: (a) the confirmability of the
Plan as it applies to any other Debtor, or (b) the Trustee's ability to modify
the Plan, as it applies to any Debtor, in an effort to satisfy the requirements
of section 1129 of the Bankruptcy Code.
ARTICLE VII
MEANS OF IMPLEMENTATION OF THE PLAN
7.1 IMPLEMENTATION OF THE PLAN.
The Plan shall be implemented through the means contemplated by
sections 1123(a)(5), (b)(3) and (b)(4) of the Bankruptcy Code (a) prior to the
Effective Date, by the Trustee and the Debtors, and (b) on and after the
Effective Date, by the Liquidating LLCs.
7.2 SUBSTANTIVE CONSOLIDATION.
The Plan is premised upon the substantive consolidation of CFC, SLC
and, subject to Section 7.3 hereof, IBF Hotel, only for purposes of the Plan,
for voting, confirmation and distribution purposes. The Plan does not provide
for the substantive consolidation of IBF with any of the Fund Debtors. Except as
provided in Sections 7.5, 8.1 or 8.3 hereof, the Plan does not contemplate the
merger or dissolution of any Debtor or the transfer or commingling of any asset
of any Debtor. On the Effective Date, (a) all assets and liabilities of the Fund
Debtors
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shall be deemed merged or treated as though they were merged into and with the
assets and liabilities of one another; (b) no distributions shall be made under
the Plan on account of Intercompany Claims of any Fund Debtor against any other
Fund Debtor; and (c) all guarantees by any Fund Debtor of the obligations of any
other Fund Debtor shall be deemed eliminated so that any Claim against any Fund
Debtor and any guarantee thereof executed by any other Fund Debtor or any joint
or several liability of any Fund Debtor shall be deemed to be one obligation of
the Fund Debtors, as consolidated. The holders of Allowed Claims against any
Fund Debtor shall be entitled to the treatment provided hereby without regard to
which Fund Debtor was originally liable for such Claim. Each of the Debtors is
and at all times has been a separate corporation, and the substantive
consolidation contemplated hereby shall not, other than as provided herein, (i)
affect the separate corporate existence of the Debtors; (ii) affect Intercompany
Claims; or (iii) effect a merger of the Debtors or make any Debtor liable for
the debts of another Debtor for any purpose (including corporate or tax
purposes) other than for purposes of distributions hereunder. The substantive
consolidation contemplated hereby shall not be construed to suggest that the
Debtors were not operated as separate corporations pre-Effective Date, nor shall
it confer any rights upon any Person, other than as set forth in the Plan.
7.3 CONDITION TO SUBSTANTIVE CONSOLIDATION OF IBF HOTEL.
Notwithstanding anything to the contrary in the Plan, in the event it
is determined, at any time prior to Confirmation, that the aggregate amount of
Allowed Claims and Disputed Claims in IBF Hotel-2, IBF Hotel-3 and IBF Hotel-4
exceeds $500,000, the Trustee, at his sole discretion, may determine that IBF
Hotel shall not be substantively consolidated with CFC and SLC pursuant to
Section 7.2 hereof (in such case only CFC and SLC shall be "Fund Debtors" for
purposes of the Plan), in which event the Trustee may at his sole discretion
either (x) withdraw, supplement or modify the Plan as it relates to IBF-Hotel or
(y) seek the dismissal of IBF Hotel's Chapter 11 Case, in each instance without
further notice other than by announcement at the Confirmation Hearing.
7.4 ORDER GRANTING SUBSTANTIVE CONSOLIDATION.
The Plan shall serve as a motion for entry of an order substantively
consolidating the Fund Debtors' Chapter 11 Cases, as described and to the
limited extent set forth in Sections 7.2 and 7.3 hereof. Such substantive
consolidation may be ordered only if the Confirmation Order is entered. Unless
an objection to such substantive consolidation is made in writing by a creditor
affected by the Plan in the manner and prior to such deadline as may be
established for objections to Confirmation of the Plan, an order approving such
substantive consolidation (which may be the Confirmation Order) may be entered.
In the event objections are timely Filed, a hearing with respect thereto shall
occur at the Confirmation Hearing.
7.5 CERTAIN AGREEMENTS BETWEEN IBF AND THE FUND DEBTORS.
In exchange for the various compromises and other good and valuable
consideration provided herein, IBF and the Fund Debtors acknowledge and agree as
follows, effective as of the Effective Date:
(a) payments in respect of Allowed Administrative Claims
against IBF or Allowed Priority Tax Claims against IBF shall be made,
first, from available IBF Assets, and second, upon exhaustion of
available IBF Assets, and subject to the absolute discretion of the
Trustee, from available Fund Assets; provided, however, that, in the
aggregate, (i) payments made from Fund Assets in respect of Allowed
Administrative Claims against IBF shall not exceed $300,000, and (ii)
payments made from Fund Assets in respect of Allowed Priority Tax
Claims against IBF shall not exceed $100,000; and provided further
that, any advances by CFC or SLC to IBF after their Petition Date
shall, by operation of the Plan, be deemed Allowed Administrative
Claims against IBF, payable when funds become available from IBF's
Estate and entitled to the payment priority given to Allowed
Administrative Claims under the Plan (for the avoidance of doubt, such
advances shall be repaid in full prior to any distributions to holders
in respect of Allowed Claims in Classes IBF-3 or IBF-4); and
(b) on the Effective Date, by operation of the Plan, IBF
shall assign, transfer or otherwise convey to CFC or its designee all
right, title and interest in the equity interests of AIH held by IBF.
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7.6 ASSIGNMENT OF INTEREST GUARANTEE CLAIMS.
On the Effective Date, in exchange for the treatment specified for
Allowed Claims in Classes SLC-3, SLC-4, SLC-5, CFC-3, CFC-4 or CFC-5, and in
exchange for the various compromises and other good and valuable consideration
provided herein, the holders of Interest Guarantee Claims shall, by operation of
the Plan and without further, assign such Claims to the Fund Liquidating LLC,
and to the extent such Claims are or become Allowed Claims, the Fund Liquidating
LLC shall receive the treatment specified for IBF-4.
7.7 COMPROMISE AND SETTLEMENT.
Pursuant to section 1123(b)(3) of the Bankruptcy Code and Bankruptcy
Rule 9019(a), the Trustee may, subject to approval of the Bankruptcy Court,
compromise and settle Claims against the Debtors or any claims the Debtors or
the Estates may have against other Persons. The Trustee hereby reserves the
right, with approval of the Bankruptcy Court, to compromise and settle Claims
against the Debtors or claims the Debtors or the Estates may have against other
Persons up to and including the Effective Date. The Trustee further reserves the
right to compromise and settle with any holder of securities issued by AIH, and
may, as part of any such compromise or settlement, offer to treat any such
holder as the holder of an Allowed Claim in SLC-4, SLC-5, CFC-4 or CFC-5, solely
for purposes of distributions hereunder. On the Effective Date, such rights
shall pass to the Liquidating LLCs, and thereafter, Claims against the Debtors
or claims the Debtors or the Estates may have against other Persons may be
compromised and settled exclusively by the respective Liquidating Agent, without
approval of the Bankruptcy Court; provided, however, that approval of the
Bankruptcy Court, on appropriate application, shall be required for any such
compromise or settlement (a) with any "insider" of the Debtors, as such term is
defined in section 101(31) of the Bankruptcy Code, or (b) where the claim
compromised is in excess of $500,000.
7.8 CANCELLATION OF EXISTING SECURITIES, INSTRUMENTS AND
AGREEMENTS.
On the Effective Date, except as provided herein, all securities,
instruments and agreements governing any Escrow Claim, General Unsecured Claim,
or Interest Guarantee Claim (including the Escrow Agreement and the Notes) shall
be deemed terminated, cancelled and extinguished and, except as otherwise
provided herein, the Debtors shall be released from any and all obligations
thereunder; provided, however, that such terminations shall not impair the
rights of holders of such Allowed Claims to receive distributions in respect
thereof under the Plan; and provided further that the SLC Indenture shall
continue in effect solely for the purposes of (i) allowing the SLC Indenture
Trustee to make the distributions being made hereunder on account of Allowed
Claims and (ii) permitting the SLC Indenture Trustee to maintain any rights or
liens it may have for fees, costs and expenses under the SLC Indenture.
7.9 CORPORATE ACTION.
As of the Effective Date, all matters provided for under the Plan
involving or requiring corporate action or approval by any Debtor shall be
deemed to have occurred and shall be effective, authorized and approved in all
respects under applicable non-bankruptcy law without any requirement of further
action by such Debtor, or its stockholders, officers or directors. Without
limiting the generality of the foregoing, the Debtors may execute such documents
and take such action as is necessary to effectuate the transactions provided for
herein. Subsequent to the performance of the SLC Indenture Trustee required
under the provisions of this Plan and under the terms of the SLC Indenture, the
SLC Indenture Trustee shall be relieved of all obligations associated with the
SLC Indenture.
7.10 DISPUTED CLAIMS RESERVE.
Each Liquidating LLC shall establish (and thereafter maintain) its
respective Disputed Claims Reserve, which shall consist of Assets and Membership
Interests in an amount determined by the Liquidating Agent to be sufficient to
make one hundred percent (100%) of the distributions to which the holders of
Disputed Claims would be entitled if such Disputed Claims were Allowed Claims in
the Face Amount of such Disputed Claims, provided, however, that in the event
the Liquidating Agent requests estimation of a Disputed Claim, the amount
reserved in respect of such Disputed Claim in the respective Disputed Claims
Reserve need only equal the estimated amount determined by the Bankruptcy Court
or agreed to by the holder thereof.
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7.11 EXPENSE RESERVE.
Each Liquidating LLC shall establish (and thereafter maintain) its
respective Expense Reserve, which shall consist of Cash or Cash-equivalents in
an amount determined by its Liquidating Agent to be a sufficient reserve for the
fees and costs associated with the administration of such Liquidating LLC.
Amounts held in the Expense Reserve may be increased (from Cash held by the
Liquidating LLC) or decreased from time to time in the respective Liquidating
Agent's discretion, pursuant to the terms of its Liquidating LLC Agreement.
7.12 WIND-UP AND DISSOLUTION.
Each Liquidating LLC shall be responsible for winding up the affairs of
its respective Debtor(s) and any Non-Debtor Affiliates whose shares are
transferred to such Liquidating LLC on the Effective Date, including but not
limited to preparing and filing final tax returns, filing dissolution documents
under applicable law, paying any fees due in connection with such dissolution,
settling or compromising with any holder of securities issued by AIH such
holder's claims against or interests in AIH, as permitted by Section 7.7 hereof,
and taking any other actions that are necessary to wind up the affairs of the
Debtors or such Non-Debtor Affiliates. Notwithstanding the foregoing, by
operation of the Plan and without further, IBF, SLC, CFC and IBF Hotel shall,
for purposes of applicable non-bankruptcy law, cease to exist and shall be
deemed as a matter of law dissolved as of the Effective Date.
7.13 TAXES AND TAX REPORTING.
(a) Tax Treatment of Transfer of Assets to Liquidating
LLCs.
(1) In General. For federal income tax purposes,
all parties (including without limitation the Debtors, the
Liquidating Agents and the holders of Allowed or Disputed
Claims) shall follow the treatment set forth in this Section
7.13(a) in characterizing each Debtor's transfer of its Assets
to the respective Liquidating LLC or Disputed Claims Reserve
in accordance with the terms of the Plan. Neither the
Liquidating LLCs nor the Disputed Claims Reserves shall be
deemed to be the same legal entity as any Debtor, but only the
assignee of its respective Assets.
(2) Assets. IBF shall be treated as having
distributed all right, title and interest in the IBF Assets
remaining after initial distributions required under the Plan,
including without limitation any Cash or Causes of Action, to
the holders of Allowed Claims in IBF-3 and IBF-4, according to
each such holder's Pro Rata share. The Fund Debtors shall be
treated as having distributed all right, title and interest in
the Fund Assets remaining after initial distributions required
under the Plan, including without limitation any Cash or
Causes of Action, to the holders of Allowed Claims in CFC-4,
SLC-4 and, subject to Section 7.3 hereof, IBF Hotel-4,
according to each such holder's Pro Rata share. Each such
holder shall then be treated as having contributed its Pro
Rata share of the remaining IBF Assets or Fund Assets, as the
case may be, to its Liquidating LLC (together with the other
contributions by such holder described in this Section), in
exchange for such holder's Membership Interests. Each such
holder shall be treated as having received its Membership
Interests subject to the payment obligations associated with
the applicable Expense Reserve, and its Liquidating LLC shall
be treated as having assumed those obligations in connection
with the deemed contributions to the Liquidating LLC.
(3) Disputed Claims Reserve. In the case of each
Disputed Claim that becomes an Allowed Claim, all property
held for the account of the holders of such Disputed Claim in
a Disputed Claims Reserve, including a corresponding
Membership Interest in a Liquidating LLC, shall be treated as
having been distributed to such holder, which then shall be
deemed to hold directly its interest in such Liquidating LLC.
With respect to each Disputed Claim which becomes a Disallowed
Claim, all property held for the account of the holder thereof
in the Disputed Claims Reserve, including a corresponding
Membership Interest in a Liquidating LLC, shall be treated as
having been transferred back to such Liquidating LLC for
reallocation to the holders of Membership Interests in such
Liquidating LLC and, in respect of Disputed Claims, to its
respective
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Disputed Claims Reserve. All holders of Allowed or Disputed
Claims shall report, for tax purposes, consistent with the
foregoing.
(b) Tax Valuation of Assets. On or before December 31,
2003, each Liquidating Agent, in consultation with its Liquidating
LLC's advisors, shall determine the value of the Assets transferred to
its Liquidating LLC under the Plan. The value determined by the
Liquidating Agent shall be conclusive absent manifest error. All
parties (including without limitation the Debtors, the Liquidating
Agent and the holders of Allowed Claims) or their assigns shall use
this valuation for all federal income tax purposes.
(c) Tax Treatment of Liquidating LLC.
(1) Partnership Tax Status. Each Liquidating LLC
is expected to be treated as a partnership for federal income
tax purposes and, to the extent permitted under applicable
law, for state and local income tax purposes. Each Liquidating
LLC shall be responsible for distributing information
statements to the holders of its Membership Interests, setting
forth, inter alia, each member's allocable share of the
income, gain, loss, deduction or credit of such Liquidating
LLC.
(2) Allocation of the Liquidating LLC Taxable
Income, Gain, Loss, Deductions or Credits. For federal income
tax purposes, holders of Membership Interests in each
Liquidating LLC shall be allocated items of income, gain,
loss, deduction or credit of such Liquidating LLC in a manner,
to be determined by the respective Liquidating Agent, that is
consistent with applicable Treasury Regulations and that
reflects their respective interests in the interim and final
distributions to be made by such Liquidating LLC. These
respective interests may shift from time to time as the result
of the withdrawal or disallowance of Disputed Claims. Each
holder of a Membership Interest in a Liquidating LLC shall be
required to take into account such holder's allocable share of
the income, gain, loss, deduction or credit of such
Liquidating LLC in determining the holder's taxable income for
federal income tax purposes.
(3) Disputed Claims Reserve. Subject to
definitive guidance from the Internal Revenue Service or a
court of competent jurisdiction to the contrary (including the
receipt by the Liquidating LLC of a private letter ruling, if
requested, or receipt of an adverse determination on audit if
not contested by the Liquidating Agent), each Liquidating LLC
shall (A) treat its Disputed Claims Reserve as a discrete
trust for federal income tax purposes, consisting of separate
and independent shares to be established in respect of each
Disputed Claim in accordance with the trust provisions of the
Internal Revenue Code Section 641 et seq.; (B) to the extent
permitted by applicable law, report consistently with the
foregoing for state and local income tax purposes; (C) prepare
and file tax returns for its Disputed Claims Reserve; and (D)
pay any amounts of tax attributable to its Disputed Claims
Reserve from amounts held in such reserve. All holders of
Allowed or Disputed Claims shall report, for tax purposes,
consistently with the foregoing.
(d) Expedited Tax Determinations. Each Liquidating Agent
is authorized to request an expedited determination under section
505(b) of the Bankruptcy Code for all tax returns of the Debtors or
such Liquidating LLC for all taxable periods through termination of
such Liquidating LLC.
(e) Withholding and Reporting. In connection with the
Plan and all instruments issued in connection herewith and
distributions hereunder, the Debtors and the Liquidating LLCs shall
comply with all withholding and reporting requirements imposed by any
federal, state, local or foreign taxing authority, and all
distributions hereunder shall be subject to any such withholding and
reporting requirements.
(f) Exemption from Transfer Taxes. To the greatest extent
permitted under applicable law, pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of debt 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
25
under, in furtherance of, or in connection with the Plan, including any
deeds, bills of sale or assignments executed in connection with any of
the transactions contemplated under the Plan, shall not be subject to
any stamp, real estate transfer, mortgage recording or other similar
tax.
7.14 TERMS OF INJUNCTIONS OR STAYS.
Unless otherwise provided herein, all injunctions or stays provided for
in any of the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy
Code or otherwise in effect on the Confirmation Date shall remain in full force
and effect until the Effective Date. If the Plan is not confirmed with respect
to a particular Debtor, all such injunctions or stays shall remain in full force
and effect until ordered otherwise by the Bankruptcy Court or until an
alternative plan of reorganization is confirmed in such Debtor's Chapter 11 Case
or the Debtor's Chapter 11 Case is dismissed. Except as may be determined
otherwise by Final Order of the Bankruptcy Court pursuant to Section 14.3
hereof, all distributions and transfers of property pursuant to the Plan shall
be made free and clear of all liens, claims and encumbrances and, on the
Confirmation Date, all holders of Claims or Interests shall be permanently
enjoined from and restrained against commencing or continuing any suit, action
or proceeding, or asserting against the Liquidating LLCs or the assets or
property thereof, any claim, interest or cause of action based upon any act or
omission, transaction or other activity of any kind that occurred prior to
Confirmation.
7.15 FURTHER ASSURANCES.
The Trustee and the Debtors are hereby authorized and directed to take
all necessary steps, and perform all necessary acts, to consummate the terms and
conditions of the Plan on the Effective Date. The Trustee and the Debtors may,
and shall, execute such documents and take such other actions as are necessary
to effectuate the transactions provided for in the Plan.
7.16 EFFECTS OF APPEAL.
Unless the Confirmation Order is stayed pending a timely appeal
therefrom, at the option of the Trustee, the Plan may be consummated
notwithstanding the pendency of an appeal from the Confirmation Order or the
timely service or filing of a motion under Bankruptcy Rules 7052, 8002, 8003,
8015, 9023 or 9024.
ARTICLE VIII
LIQUIDATING LLCs
8.1 FORMATION OF LIQUIDATING LLCs; LIQUIDATING LLC AGREEMENTS
On or before the Effective Date, the Trustee and the Debtors shall take
the steps necessary or appropriate to duly form the Liquidating LLCs and to
enter into and make effective the Liquidating LLC Agreements. Upon execution and
delivery of the Liquidating LLC Agreements, each Liquidating Agent shall take
all other steps necessary to complete the formation of its Liquidating LLC.
Execution of each Liquidating LLC Agreement by the Debtors shall be sufficient
to cause such Liquidating LLC Agreement to become effective and binding upon all
members of its Liquidating LLC, and the parties acquiring Membership Interests
in such Liquidating LLC under the Plan shall become members of such Liquidating
LLC immediately upon the issuance to or acquisition by such holder of its
Membership Interests.
8.2 PURPOSE OF LIQUIDATING LLCs.
The Liquidating LLCs shall be organized for the purposes of
liquidating, collecting and maximizing the cash value of their Assets, making
certain distributions in accordance with the terms of the Plan, and taking such
steps as necessary or appropriate to accomplish such purposes, including without
limitation holding Assets or making limited additional investments in Assets in
certain instances, to maximize the value of such Assets.
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8.3 TRANSFER OF ASSETS TO LIQUIDATING LLCs.
On the Effective Date, after the initial distributions required under
the Plan, (a) IBF shall irrevocably assign, transfer and convey to the IBF
Liquidating LLC all right, title and interest in the remaining IBF Assets, which
shall be deemed vested in the IBF Liquidating LLC, and (b) the Fund Debtors
shall irrevocably assign, transfer and convey to the Fund Liquidating LLC all
right, title and interest in the remaining Fund Assets, which shall be deemed
vested in the Fund Liquidating LLC. Except as otherwise provided in the Plan,
the Confirmation Order, or any contract, instrument, release or other agreement
or document created in connection with the Plan, on the Effective Date, all
liens, claims and encumbrances against the Assets transferred to the Liquidating
LLCs shall be fully and completely released and discharged, such Assets shall be
free and clear of any such liens, claims and encumbrances, and the Debtors shall
have no further rights or obligations with respect to such Assets.
8.4 MEMBERSHIP INTERESTS IN LIQUIDATING LLCs.
On the Effective Date, each holder of an Allowed Claim in IBF-3 or
IBF-4 shall, by operation of the Plan, (a) be admitted to the IBF Liquidating
LLC as a member, (b) become bound by the IBF Liquidating LLC Agreement, and (c)
receive, in exchange for its Allowed Claim, IBF Membership Interests, in an
amount determined in accordance with Sections 5.1(c) and 5.1(d) hereof,
conferring membership in the IBF Liquidating LLC and representing the rights
conferred on such holder by the Plan. On the Effective Date, each holder of an
Allowed Claim in SLC-4 and CFC-4 (including, for purposes hereof, any holders of
securities issued by AIH pursuant to any settlement or compromise permitted by
Section 7.7 hereof) and, subject to Section 7.3 hereof, IBF Hotel-4, shall, by
operation of the Plan, (a) be admitted to the Fund Liquidating LLC as a member,
(b) become bound by the Fund Liquidating LLC Agreement, and (c) receive, in
exchange for its Allowed Claim, Fund Membership Interests, in an amount
determined in accordance with Sections 5.2.(d), 5.3(d), 5.4(d) and 7.7 hereof,
conferring membership in the Fund Liquidating LLC and representing the rights
conferred on such holder by the Plan. Membership Interests with respect to
Disputed Claims shall be held in the appropriate Disputed Claims Reserve pending
allowance, disallowance or withdrawal of such Disputed Claims. No other entity,
including without limitation the Debtors, shall have any interest, legal,
beneficial or otherwise, in the Liquidating LLCs or their assets or other
property. Each Liquidating Agent shall maintain a registry of Membership
Interests in its respective Liquidating LLC. Each Liquidating LLC Agreement
shall prohibit the issuance of nonvoting equity securities by the Liquidating
LLC to the extent required by section 1123(a)(6) of the Bankruptcy Code.
8.5 NON-TRANSFERABILITY OF MEMBERSHIP INTERESTS.
Membership Interests shall be non-transferable, except with respect to
the following types of transfers: (a) distributions of Membership Interests in
the Company from the Disputed Claims Reserve; (b) transfers under the laws of
descent or intestate succession, including transfers from an estate or
testamentary trust; and (c) transfers by operation of law or by order of a court
of competent jurisdiction. In the case of transfers described in (b) and (c),
the transferor shall provide the Liquidating Agent with written notice not less
than thirty (30) days prior to the proposed transfer, including all pertinent
facts and, if applicable, documents relating to the transfer; the Liquidating
Agent shall have the right to approve or disapprove the transfer and impose any
conditions with respect to the transfer that the Liquidating Agent deems
necessary or advisable in its sole discretion; to require from the transferor or
obtain from counsel to its Liquidating LLC (at the Liquidating Agent's option)
an opinion in form and substance satisfactory to the Liquidating Agent that the
transfer will not cause the Liquidating LLC to be taxable as a corporation for
federal income tax purposes; and to require the transferor to reimburse the
Liquidating LLC for any expenses incurred in connection with the proposed
transfer, whether or not approved. Any transfer not approved by the Liquidating
Agent pursuant to these procedures will be null and void and of no effect.
8.6 MANAGEMENT, OPERATION OF LIQUIDATING LLCs.
After the Effective Date, the affairs of each Liquidating LLC shall be
managed by its Liquidating Agent, and monitored by its Liquidating Committee,
pursuant to the terms of its Liquidating LLC Agreement. The Trustee shall serve
in each instance as the Liquidating Agent. Each Liquidating Committee shall
consist of those members of the Committee who are receiving Membership Interests
in either Liquidating LLC and who notify the Trustee of their desire to serve in
such capacity. Each Liquidating Committee may employ the current attorneys to
the Committee or,
27
with the consent of the Liquidating Agent (which consent shall not be
unreasonably withheld) such other attorneys of its choosing. The Liquidating LLC
Agreements shall provide, inter alia, that members of the Liquidating Committees
shall be entitled to reasonable compensation for their services and that each
Liquidating Agent and the members of each Liquidating Committee shall be
indemnified by the Liquidating LLCs (except for liability based on the gross
negligence or willful misconduct of such parties). Each Liquidating LLC shall be
a representative of its respective Estate(s), pursuant to section 1123(b)(3) of
the Bankruptcy Code, and shall have all of the rights, powers and duties
incident to administration of such Liquidating LLC for the benefit of such
Liquidating LLC's members. Each Liquidating Agent's powers shall be as set forth
in its Liquidating LLC Agreement and shall include, inter alia:
(a) the ability and authority to object to Claims, and to
prosecute or settle such objections and defend claims asserted in
connection therewith (including by way of asserting a Debtor's rights
of recoupment, setoff or otherwise), and to settle or comprise with any
holder of securities issued by AIH such holder's claims against or
interests in AIH, as permitted by Section 7.7 hereof;
(b) evaluating, filing and litigating or otherwise
resolving Causes of Action;
(c) the formation and administration of such Liquidating
LLC's Expense Reserve, Disputed Claims Reserve and Unclaimed
Distributions Reserve;
(d) selling or otherwise transferring for value non-cash
Assets and depositing or otherwise treating the net proceeds thereof as
provided hereunder;
(e) investing Cash of such Liquidating LLC, pursuant to
Section 8.7(a) hereof, or, in certain instances, holding or making
additional investments in Assets to maximize the value thereof for the
Liquidating LLC's members, pursuant to Section 8.7(b) hereof;
(f) abandoning any property that cannot be sold or
otherwise disposed of for value and whose distribution to its members
would not be feasible or cost-effective;
(g) effecting the distributions required but not
previously made under the Plan, including without limitation the
distribution of its Membership Interests; and
(h) winding up the affairs of the Debtors, certain
Non-Debtor Affiliates and the Liquidating LLCs, and dissolving each of
them under applicable law in accordance with the terms hereof.
8.7 INVESTMENTS BY LIQUIDATING LLCs.
(a) Each Liquidating Agent may, in the exercise of its
business judgment, hold Assets in Cash or Cash-equivalents, including
without limitation money market funds or treasury bills.
(b) Each Liquidating Agent may, in the exercise of its
business judgment, hold one or more Assets for a period of time or make
additional investments in one or more Assets, in order to maximize the
value thereof for its Liquidating LLC's members; provided, however,
that if the aggregate additional investment in a particular Asset would
be less than or equal to $250,000, the Liquidating Agent may make such
investment in the exercise of its business judgment, if the aggregate
additional investment in a particular Asset would be greater than
$250,000 but less than or equal to $1,000,000, the Liquidating Agent
may make such investment with the prior consent of its Liquidating
Committee or, in the absence of such consent, upon notice to its
Liquidating Committee and an opportunity for hearing before the
District Court; and if the aggregate additional investment in a
particular Asset would equal or exceed $1,000,000, the Liquidating
Agent shall provide notice to all members of its Liquidating LLC and an
opportunity for hearing before the District Court; and provided further
that, notwithstanding anything to the contrary herein, the Liquidating
Agents are hereby authorized, in the exercise of their business
judgment, to make additional aggregate investments in the following
Assets, in the following amounts, without further approval: (i) up to
$5,000,000 in Investment & Benefit Services, Inc.; and (ii) up to
$1,000,000 in U.S. Mills, Inc.
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8.8 PRESERVATION OF CAUSES OF ACTION.
In accordance with section 1123(b)(3) of the Bankruptcy Code, and
except as otherwise provided in the Plan, all Causes of Action transferred to
the Liquidating LLCs shall be retained by the Liquidating LLCs and each
Liquidating Agent shall, in the exercise of his business judgment, determine
whether to pursue Causes of Action on behalf of its respective Estate(s), in
accordance with the best interests of its Liquidating LLC's members.
8.9 ESCROWED AMOUNT; HOLDBACK.
On the Effective Date, the Trustee shall (a) distribute the Initial
Escrow Amount pursuant to Sections 5.2(c) and 5.3(c) hereof, (b) distribute the
Initial Non-Escrow Amount pursuant to Sections 5.2(d), 5.3(d) and 5.4(d) hereof,
and transfer the Initial Escrow Holdback to the Fund Liquidating LLC, which may
utilize the Initial Escrow Holdback in any manner authorized under the Plan,
including any manner authorized in Section 8.7 hereof.
8.10 ESCROW COMMISSION CLAIMS.
In the event amounts are realized by the Fund Liquidating LLC in
respect of any Escrow Commission Claim, the Fund Liquidating Agent shall, on or
before the next scheduled distribution date, (x) make a Pro Rata distribution of
the first $3,790,000 of Net Escrow Commission Recovery to the holders of Allowed
Claims in CFC-3 or SLC-3 (or to the Disputed Claims Reserve on account of such
holder's Disputed Claims in CFC-3 or SLC-3), pursuant to Sections 5.2(c) and
5.3(c) hereof, and (y) to the extent the Net Escrow Commission Recovery exceeds
$3,790,000, make a Pro Rata distribution of such excess to the holders of Fund
Membership Interests.
8.11 COSTS OF ADMINISTRATION.
All costs and expenses associated with the administration of each
Liquidating LLC shall be paid from its Expense Reserve pursuant to the terms of
its Liquidating LLC Agreement.
8.12 COMPENSATION OF LIQUIDATING AGENTS/LIQUIDATING COMMITTEE.
Each Liquidating Agent and Liquidating Committee shall be compensated,
and shall be entitled to reimbursement of its expenses, from its Expense
Reserve, pursuant to the terms of its Liquidating LLC Agreement.
8.13 HIRING OF EMPLOYEES; RETENTION OF PROFESSIONALS.
Each Liquidating LLC is authorized, without further order of the
Bankruptcy Court or the District Court, to hire such employees and retain such
professionals as it may deem necessary to discharge its obligations, and the
costs of such employment and other expenditures shall be paid by the Liquidating
LLC from its Expense Reserve. The compensation and reimbursement of such
professionals shall be subject to the provisions of Section 10.6 hereof.
8.14 TERMINATION OF LIQUIDATING LLCs.
Promptly after all Assets in a particular Liquidating LLC have been
liquidated and all distributions required from such Liquidating LLC have been
made, its Liquidating Agent shall wind up the affairs of such Liquidating LLC,
file final tax returns, arrange for storage of its records and dissolve it
pursuant to applicable law.
8.15 DISCHARGE OF LIQUIDATING AGENTS/LIQUIDATING COMMITTEES.
Promptly after all of the Assets transferred to a Liquidating LLC have
been liquidated and all distributions have been made, its Liquidating Agent
shall file with the District Court a final report of distributions, whereupon
its Liquidating Agent and Liquidating Committee shall have no further duties
under the Plan.
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ARTICLE IX
PROVISIONS GOVERNING DISTRIBUTIONS
9.1 DISBURSING AGENT.
The Trustee or his designee shall make or cause to be made all initial
cash distributions required under the Plan. All distributions of Membership
Interests or subsequent cash distributions required or permitted under the Plan
shall be made by the Liquidating Agents or their respective designees.
9.2 INITIAL DISTRIBUTIONS/RESERVE ACCOUNTS.
(a) On or as soon as practicable after the Effective
Date, the Trustee shall:
(1) make the distributions required in respect
of Allowed Administrative Claims, Allowed Priority Tax Claims,
Allowed Secured Claims and Allowed Other Priority Claims, and
deposit with the Disputed Claims Reserves the amounts required
to be reserved in respect of Disputed Administrative Claims,
Disputed Priority Tax Claims, Disputed Secured Claims and
Disputed Other Priority Claims;
(2) make the distributions required in respect
of Allowed Cash-Out Claims in SLC-5 and CFC-5, and deposit
with the Disputed Claims Reserves the amounts required to be
reserved in respect of Disputed Cash-Out Claims in SLC-5 and
CFC-5; and
(3) transfer the IBF Assets and Fund Assets
remaining after such initial distributions to the IBF
Liquidating LLC or Fund Liquidating LLC, as the case may be,
including, in the case of the Fund Liquidating LLC, the
Initial Escrow Holdback.
(b) On or as soon as practicable after the Effective
Date, the Liquidating Agents shall:
(1) take receipt of the Assets transferred to
them by or at the direction of the Trustee, to be treated in
the manner specified in the Plan, the Confirmation Order or
the Liquidating LLC Agreements;
(2) establish and, if required, fund the
reserves required under the Plan;
(3) make the distributions required under the
Plan in respect of Allowed Escrow Claims, consisting of the
Initial Escrow Distribution and Escrow Notes, and make any
deposits with the Disputed Claims Reserves required in respect
of any Disputed Escrow Claims;
(4) distribute IBF Membership Interests, or
deposit IBF Membership Interests in the Disputed Claims
Reserve, in respect of Allowed Claims and Disputed Claims in
IBF-3; and
(5) distribute Fund Membership Interests and the
Initial Non-Escrow Distribution, or make the required deposits
in the Disputed Claims Reserve, in respect of Allowed Claims
and Disputed Claims in SLC-4, CFC-4 and, subject to Section
7.3 hereof, IBF Hotel-4 (and, as part of any settlement or
compromise with any holder of securities issued by AIH
concerning such holder's claims against or interests in AIH,
as permitted by Section 7.7 hereof, to such holder).
9.3 SUBSEQUENT DISTRIBUTIONS/REPORTS.
Unless otherwise directed by the District Court, distributions
subsequent to the initial distributions made on or about the Effective Date will
be made at each Liquidating Agent's discretion approximately once every one
hundred and eighty (180) days, provided that there are unencumbered funds
available for distribution and provided further that, in the case of the Fund
Liquidating LLC, no further distributions to its members (other than
distributions
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from the Expense Reserve, Disputed Claims Reserve or the Unclaimed Distribution
Reserve, or distributions in an amount not to exceed the estimated tax liability
of such members arising as a result of allocations of income and gain of the
Fund Liquidating LLC) shall be made until payment in full of all obligations
owed under the Escrow Notes. At least twenty (20) days prior to the date of any
proposed interim distribution, the Trustee shall file with the District Court
and serve on each Liquidating LLC's members a brief report, detailing actions
taken in the prior six (6) months, the financial condition of such Liquidating
LLC, and the amount and source of the proposed distribution. Objections thereto
must be filed with the District Court and served so as to be received by the
Trustee and such Liquidating LLC at least five (5) days prior to the date of the
proposed distribution. Objections will be resolved by the District Court. In the
absence of a timely objection, the Liquidating Agent is authorized to make such
interim distributions in the manner and amount so proposed.
9.4 DELIVERY OF DISTRIBUTIONS.
All distributions made under the Plan shall be made to holders of
Allowed Claims as of the Distribution Record Date (a) if any such holder has
Filed a proof of claim, at the address of such holder as set forth in the proof
of claim, or (b) if any such holder has not Filed a proof of claim, at the last
known address of such holder according to the Debtors' books and records. None
of the Trustee, the Debtors or the Liquidating LLCs shall have any obligation to
recognize any purported transfer of a Claim after the Distribution Record Date,
and will be entitled for all purposes relating to the Plan to recognize and deal
only with those holders of Claims shown on the books of the Debtors as of the
close of business on the Distribution Record Date. All distributions under the
Plan to the holders of SLC Bonds shall be made directly to the SLC Indenture
Trustee pursuant to the SLC Indenture.
9.5 MEANS OF CASH DISTRIBUTIONS.
Payments made pursuant to the Plan shall be in lawful U.S. currency and
by the means agreed to by the payor and the payee, including by check or wire
transfer or, in the absence of an agreement, such commercially reasonable manner
as the respective Liquidating Agent shall determine.
9.6 NO DISTRIBUTIONS PENDING ALLOWANCE.
No payments or distributions shall be made with respect to any Claim to
the extent such Claim is a Disputed Claim unless and until all objections to
such Disputed Claim are withdrawn or overruled by the Bankruptcy Court and such
Claim becomes an Allowed Claim.
9.7 DISTRIBUTIONS AFTER ALLOWANCE.
Distributions shall be made as appropriate to the holder of any
Disputed Claim that has become an Allowed Claim on the date such Disputed Claim
becomes an Allowed Claim or as soon thereafter as practicable. Such
distributions shall be based upon the cumulative distributions that would have
been made to the holder of such Claim under the Plan if the Disputed Claim had
been an Allowed Claim as of the Effective Date and shall not be limited by the
amounts reserved with respect to such Disputed Claim to the extent that
additional amounts are available therefor, but only to the extent that such
additional amounts have not yet been distributed to holders of Allowed Claims.
Such distributions shall be decreased by any taxes paid or payable on such
portion of the Disputed Claims Reserve. Upon such distribution, or the
disallowance or withdrawal of a Disputed Claim, the Disputed Claims Reserve
shall be reduced by an amount equal to the amount reserved with respect thereto.
No interest shall be payable to holders of Disputed Claims on account of funds
reserved in respect of such Disputed Claims.
9.8 INTERIM DISTRIBUTIONS FROM EXPENSE RESERVE.
Each Liquidating Agent may, upon notice to its Liquidating Committee,
make distributions to its Liquidating LLC's members from time to time from the
Expense Reserve to the extent that the Cash held exceeds the amount that the
Liquidating Agent determines should be reserved to pay the Liquidating LLC's
expenses.
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9.9 DISSOLUTION OF DISPUTED CLAIMS RESERVE.
When all Disputed Claims for a Liquidating LLC have been either allowed
and paid, disallowed, or withdrawn, its Liquidating Agent shall withdraw all
remaining Assets from its Disputed Claims Reserve, and return such Assets to
such Liquidating LLC, for the benefit of such Liquidating LLC's members.
9.10 SETOFF RIGHTS.
The Liquidating LLCs may, but shall not be required to, set off against
or recoup from any Claim and the distributions to be made pursuant to the Plan
in respect of such Claim, claims of any nature whatsoever that the Debtors may
have against the holder of such Claim; provided that neither the failure to do
so nor the allowance of any Claim hereunder shall constitute a waiver or release
of any such claim against such holder.
9.11 SURRENDER OF NOTES AND RELATED CERTIFICATES.
As a condition to receiving distributions under the Plan, the holders
of Notes shall deliver their Notes, or any certificate delivered to such holder
to evidence such Notes, to the respective Liquidating Agent. Any Note or
certificate that has been lost, stolen, mutilated or destroyed, shall be deemed
surrendered when the holder of an Allowed Claim based thereon delivers to the
respective Liquidating Agent: (a) evidence satisfactory to such Liquidating
Agent of the loss, theft, mutilation or destruction, and (b) such security or
indemnity as may be required by the Liquidating Agent to be held harmless with
respect thereto. No holder of a Claim based on a Note shall receive any
distribution in respect of such Claim until it has complied with the provisions
of this Section 9.11.
9.12 UNCLAIMED DISTRIBUTIONS.
If a distribution made by a Liquidating LLC pursuant to the Plan is
returned as undeliverable, the distribution shall be held in the Liquidating
LLC's Unclaimed Distributions Reserve. The Liquidating LLC shall make reasonable
efforts to determine the then-current address of such holder, and no further
distributions shall be made to such holder unless and until the Liquidating LLC
determines or is notified of such holder's current address, at which time all
missed distributions shall be made, without interest; provided, however, that
such distributions shall be deemed to be unclaimed property under section 347(b)
of the Bankruptcy Code if not claimed by the first (1st) anniversary after the
distribution was initially attempted, notwithstanding any federal or state
escheat laws to the contrary. After such anniversary date, (a) all rights to
Cash, Membership Interests or other distributions shall be forfeited and such
Cash, Membership Interests, or other property shall be revested in the
Liquidating LLC and the claim of such holder to such Cash, Membership Interests
or other distribution pursuant to the Plan shall be discharged and forever
barred and (b) all rights to such distributions shall be forfeited and any
Membership Interests to be so distributed shall be cancelled and shall no longer
be deemed outstanding and the claim of such holder to such distributions
pursuant to the Plan, including but not limited to any distribution of
Membership Interests, shall be discharged and forever barred.
9.13 FRACTIONAL SHARES.
Any other provision of the Plan notwithstanding, no distribution of
fractions of Membership Interests shall be made, and no Escrow Notes shall be
issued in any nominal amount that contains a fraction of a dollar. In either
case, the actual distribution or payment that would otherwise be called for
shall reflect a rounding of such fraction to the nearest whole share or dollar
(up or down), with half shares and half dollars being rounded down.
9.14 MINIMUM CASH DISTRIBUTIONS.
No payment of less than fifty dollars ($50) shall be made to any holder
of an Allowed Claim unless requested in writing to the Trustee or, after the
Effective Date, the respective Liquidating Agent.
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9.15 FINAL DISTRIBUTIONS.
Each Liquidating Agent shall make final distributions when (a) in the
exercise of such Liquidating Agent's business judgment, all Assets of its
Liquidating LLC have been liquidated, all Causes of Action have been litigated
to final judgment, settled, withdrawn or otherwise resolved, and there are no
potential sources of additional Cash for distribution; (b) there remains no
Disputed Claims to be resolved by its Liquidating LLC; and (c) the Liquidating
Agent is in a position to make final distributions in accordance with applicable
non-bankruptcy law; provided, however, that unless otherwise ordered by the
District Court, final distributions shall be made no later than five (5) years
after the Effective Date or as soon thereafter as the Liquidating Agent is in a
position to make final distributions in accordance with applicable
non-bankruptcy law.
ARTICLE X
ALLOWANCE/DISALLOWANCE OF CLAIMS
10.1 CLAIMS ADMINISTRATION.
Unless otherwise ordered by the Bankruptcy Court, from and after the
Effective Date, the sole and exclusive authority to administer, dispute, object
to, compromise or otherwise resolve Claims shall belong, in the case of IBF, to
the IBF Liquidating LLC, and in the case of the Fund Debtors, to the Fund
Liquidating LLC. Subject to the foregoing, the Liquidating Agents may dispute
any Claim evidenced by a proof of claim or request for payment Filed with the
Bankruptcy Court by Filing and serving on the holder thereof an objection in
accordance with the Bankruptcy Code, the Bankruptcy Rules or a Final Order of
the Bankruptcy Court. Except as otherwise provided herein, if a Liquidating
Agent disputes any Claim for which a proof of claim has been Filed, the
Liquidating Agent must File and serve on the holder of the Disputed Claim an
objection on or before the Claims Objection Deadline.
10.2 ESTIMATION OF DISPUTED CLAIMS.
The Liquidating Agents may, at any time, request that the Bankruptcy
Court estimate any Disputed Claim subject to estimation under section 502(c) of
the Bankruptcy Code, including any Disputed Claim for taxes to the extent
permitted by section 502(c) of the Bankruptcy Code, regardless of whether any
party in interest previously objected to such Claim, and the Bankruptcy Court
shall retain jurisdiction to estimate any Disputed Claim pursuant to section
502(c) of the Bankruptcy Code at any time during litigation concerning any
objection to the Claim. Disputed Claims may be estimated and subsequently
compromised, settled, withdrawn or resolved by any mechanism set forth in the
Plan or approved by the Bankruptcy Court or the District Court.
10.3 INTEREST ON CLAIMS.
Unless specifically provided in the Plan or the Confirmation Order, or
required by applicable bankruptcy law, post-petition interest shall not accrue
or be paid on Claims, and no holder of a Claim shall be entitled to interest
accruing on or after the respective Petition Date on any Claim. Interest shall
not accrue or be paid upon any Disputed Claim in respect of the period from the
Petition Date to the date a final distribution is made thereon.
10.4 VOTING AND OBJECTIONS.
Failure by the Trustee or the Debtors to object to or examine any Claim
or Interest for purposes of voting in favor of or against the Plan shall not be
deemed a waiver of the Trustee's, the Debtors' or any other Person's rights to
object to, or re-examine, such Claim or Interest, in whole or in part, for
purposes of allowance or distribution.
10.5 TREATMENT OF DEBTOR INTERCOMPANY CLAIMS.
Except as expressly set forth in the Plan, the Liquidating LLCs and the
Debtors are not releasing or abandoning any Debtor Intercompany Claims. On the
Effective Date, the Debtor Intercompany Claims of IBF and
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the Fund Debtors shall be preserved and transferred to the respective
Liquidating LLC. Each Liquidating Agent may seek to assert its respective Debtor
Intercompany Claims at any time, subject to any applicable statute of
limitations. To the extent necessary, each Liquidating LLC shall be deemed the
representative of its respective Estate(s) under section 1123(b)(3) of the
Bankruptcy Code.
10.6 PROFESSIONAL CLAIMS AND COMMITTEE FEES.
(a) On the Effective Date, each Liquidating LLC shall
reserve, in its Expense Reserve, Cash sufficient to pay in full its
respective Professional Claims and, in the case of the Fund Liquidating
LLC, the Committee Fees, incurred through the Effective Date, unless
the Bankruptcy Court or District Court orders otherwise. Professionals
and the Committee shall provide estimates for periods that have not
been billed as of the Effective Date so as to be received by the
Liquidating LLCs not later than thirty (30) days after the Confirmation
Date, and each Liquidating LLC shall use such estimates when
calculating the amounts to be reserved in the Expense Reserve or
Disputed Claims Reserve.
(b) Upon the Effective Date, any requirement that
professionals comply with sections 327 through 331 of the Bankruptcy
Code in seeking retention for services rendered after such date shall
terminate. Such persons shall be compensated and reimbursed for their
reasonable and necessary fees and out-of-pocket expenses upon
application to the District Court approximately every one hundred
eighty (180) days. Such persons shall further be entitled to interim
payments on a monthly basis, provided that for any given month in which
services are rendered, they submit a monthly statement to the
Liquidating Agent on or before the 20th of the following month. The
Liquidating Agent shall review such statements and, if he has an
objection, notify such person in writing prior to the 5th of the next
month. The parties shall make a good faith effort to solve any dispute
by consent, after which either party may submit the issue to the
District Court. To the extent a monthly request for fees and expenses
is not the subject of a pending objection, the Liquidating Agent shall
make an interim payment on or before the 10th of that month in an
amount equal to 80% of the fees and 100% of the expenses set forth in
the monthly request.
(c) All final requests for payment of Professional Claims
and Committee Fees must be filed with the Bankruptcy Court no later
than sixty (60) days after the Effective Date. After notice and a
hearing in accordance with the procedures established by the Bankruptcy
Code, the Bankruptcy Rules and prior orders of the Bankruptcy Court or
District Court, the allowed amounts of such Professional Claims and
Claims for Committee Fees shall be determined and, if allowed, paid by
the appropriate Liquidating LLC. Unless another date is specified, any
objections to Professional Claims and Committee Fees shall be Filed no
later than ninety (90) days after the Effective Date. Allowed
Professional Claims and Allowed Claims for Committee Fees shall be paid
from the respective Expense Reserve on a timely basis in accordance
with the Bankruptcy Code, Bankruptcy Rules and other applicable law, or
if no deadline is specified therein, shall be paid no later than
fifteen (15) days after the date on which they became Allowed Claims.
10.7 OTHER ADMINISTRATIVE CLAIMS.
All requests for payment of Other Administrative Claims must be Filed
with the Bankruptcy Court and served so as to be received by counsel for the
Liquidating LLCs not later than ten (10) days after the Confirmation Date.
Timely-Filed requests for payment of Other Administrative Claims that have not
been Allowed or Disallowed as of the Effective Date shall be reserved for in the
Disputed Claims Reserve in the Face Amount thereof by the respective Liquidating
LLC, unless the Bankruptcy Court orders otherwise. Unless a Liquidating LLC
objects to an Other Administrative Claim by the Claims Objection Deadline, such
Other Administrative Claim shall be deemed Allowed in the amount requested. In
the event a Liquidating LLC objects to an Other Administrative Claim, the
Bankruptcy Court shall determine the Allowed amount of such Claim.
Notwithstanding the foregoing, no request for payment need be Filed with respect
to an Other Administrative Claim payable in the ordinary course of business.
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ARTICLE XI
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
11.1 REJECTION OF CONTRACTS AND LEASES.
Other than as set forth in Section 11.3 and 11.4 hereof, all executory
contracts and unexpired leases that exist between or among the Debtors and any
other Person shall be deemed rejected by operation of this Plan pursuant to
section 365(a) of the Bankruptcy Code on the Effective Date, except for any such
contract or lease (a) that has been assumed or rejected, or renegotiated and
assumed on modified terms, pursuant to an order of the Bankruptcy Court entered
prior to the Effective Date, (b) that has been entered into by the Debtors
during the pendency of the Chapter 11 Cases in the ordinary course of business
or pursuant to an order of the Bankruptcy Court, (c) that is the subject of a
motion to assume or reject, or a motion to approve renegotiated terms and to
assume or reject on such terms, Filed prior to the Effective Date, or (d) that
is specifically treated otherwise in the Plan or in the Confirmation Order.
Entry of the Confirmation Order shall constitute the Bankruptcy Court's
approval, pursuant to section 365(a) of the Bankruptcy Code, of the rejection of
executory contracts and unexpired leases as provided for herein. For purposes of
the Plan, the obligations of Debtors, if any, to indemnify their present and
former directors, officers or employees pursuant to their certificates or
articles of incorporation, by-laws and or applicable law shall be deemed to be,
and treated as though they are, executory contracts rejected under the Plan.
11.2 EFFECT OF REJECTION.
Claims arising from the rejection of a Debtor's executory contract or
unexpired lease shall be treated as General Unsecured Claims. If the order
authorizing such rejection is entered on or after April 15, 2003, the holder
thereof shall File a proof of claim and serve copies on counsel for the Trustee,
counsel for the Debtors and as otherwise required by the Bankruptcy Code,
Bankruptcy Rules or order of the Bankruptcy Court, so as to be received on or
before the Bar Date. If the order authorizing such rejection is entered after
April 15, 2003, the holder thereof shall File a proof of claim by the date fixed
in such rejection order or, if no deadline is specified in such order, within
thirty (30) days of the effective date of the rejection of such contract or
lease or shall be forever barred. Objections to such Claims shall be Filed and
served by the Claims Objection Deadline.
11.3 ASSUMPTION OF SPECIFIC CONTRACTS AND LEASES.
Notwithstanding anything to the contrary in the Plan, including without
limitation Section 11.1 above, not less than ten (10) days prior to the
Confirmation Hearing, the Trustee shall provide a list of executory contracts
and unexpired leases being assumed by operation of the Plan pursuant to section
365(a) of the Bankruptcy Code.
11.4 INSURANCE POLICIES.
Notwithstanding anything to the contrary contained in the Plan,
including without limitation Section 11.1 above, and subject to the provisions
of Section 11.5 hereof, each of the Debtors' insurance policies and any
agreements, documents or instruments relating thereto shall be deemed to be and
treated as though they are executory contracts, and shall be assumed as of the
Effective Date by operation of the Plan pursuant to sections 365(a) and 1123(b)
of the Bankruptcy Code. Nothing contained herein shall constitute or be deemed a
waiver of any Cause of Action against any insurer or any other Person (except as
otherwise provided herein) under any of the Debtors' policies of insurance or
otherwise, or in any way to limit the obligation of such insurers to defend,
indemnify, and/or hold harmless the Debtors under the terms of any insurance
policy issued to the Debtors.
11.5 CURE OF DEFAULTS.
On the Effective Date, the Debtors and the Liquidating LLCs shall (a)
cure or provide adequate assurance that they will cure any and all undisputed
defaults under any executory contract or unexpired lease assumed pursuant to the
Plan and (b) compensate or provide adequate assurance that they will promptly
compensate the other parties to such executory contract or unexpired lease for
the agreed amount of any actual pecuniary loss to such party resulting from such
undisputed default in accordance with section 365(b)(1) of the Bankruptcy Code.
In the event that the
35
Trustee disputes the existence of a default, or the nature, extent or amount of
any required cure, adequate assurance or compensation, the Debtors' and the
Liquidating LLCs' obligations under section 365(b) of the Bankruptcy Code shall
be determined by a Final Order, and any such obligations shall be performed by
the Debtors or the Liquidating LLCs within thirty (30) days after the date of
entry of the Final Order unless otherwise provided in such Final Order.
ARTICLE XII
EFFECT OF CONFIRMATION
12.1 EXCULPATION; LIMITATION OF LIABILITY.
Except as otherwise specifically provided in the Plan, none of the
Trustee, the Committee or the Committee's members in their representative
capacity, or any of such parties' respective present or former members,
officers, directors, stockholders, employees, advisors, agents or professionals
(including all of the respective predecessors, successors and assigns of any of
the foregoing) shall have or incur, and are hereby released from, any claim,
obligation, cause of action or liability to one another or to any holder of a
Claim or Interest, or any other party in interest, or any of their respective
agents, employees, representatives, financial advisors, attorneys or affiliates,
or any of their successors or assigns, for any act or omission in connection
with, or arising out of the Chapter 11 Cases, the negotiation, documentation or
implementation of the transactions contemplated herein (including the
considerations of alternatives to the Plan (if any)), the pursuit of
confirmation of the Plan, the consummation of the Plan, the administration of
the Plan or the property to be distributed under the Plan, in all cases except
for their gross negligence or willful misconduct; provided, however, that in all
respects, such persons shall be entitled to rely upon the advice of counsel with
respect to their duties and responsibilities under the Plan, and such reliance
shall in no event constitute gross negligence or willful misconduct for purposes
of this Section 12.1.
12.2 INJUNCTION.
The satisfaction and release pursuant to Section 12.1 hereof shall act
as an injunction against the commencement or continuation of any action,
employment of process or act to collect, offset or recover any Claim or Cause of
Action so satisfied and released to the fullest extent permitted under the
Bankruptcy Code.
ARTICLE XIII
CONDITIONS PRECEDENT
13.1 CONDITIONS TO EFFECTIVE DATE.
Except as expressly waived pursuant to Section 13.2 hereof, the
following are conditions precedent to the Effective Date: (a) entry of a Final
Order finding that the Disclosure Statement contains adequate information
pursuant to section 1125 of the Bankruptcy Code; (b) entry of the Confirmation
Order, in form and substance acceptable to the Trustee, and no request for
revocation of the Confirmation Order under section 1144 of the Bankruptcy Code
shall have been made, or, if made, shall be pending, provided that, if an appeal
of the Confirmation Order or any other such order is Filed but no stay is
granted in connection therewith, the Trustee may elect to permit the Effective
Date to occur notwithstanding pendency of appeal, as provided in Section 7.16
hereof; (c) in the aggregate, payments made from Fund Assets in respect of
Allowed Administrative Claims against IBF shall not exceed $300,000; (d) in the
aggregate, payments made from Fund Assets in respect of Allowed Priority Tax
Claims against IBF shall not exceed $100,000; (e) resolution of the claims
asserted in the SEC Litigation, on terms acceptable to the SEC and the Trustee
and subject to approval of the District Court; and (f) approval by the District
Court of such other matters in or related to the Plan as may be requested by the
Trustee, in his sole discretion.
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13.2 WAIVER OF CONDITIONS.
The conditions in Section 13.1 hereof may be waived by the Trustee (or,
in the case of the condition in Section 13.1(e), by the SEC and the Trustee),
without any notice to parties in interest or the Bankruptcy Court or the
District Court and without a hearing, unless waiver is prohibited by law.
13.3 EFFECT OF FAILURE OF CONDITIONS.
In the event that the conditions in Section 13.1 have not been
satisfied or waived as provided in Section 13.2 on or before sixty (60) days
after the Confirmation Date, then upon written notification Filed by the Trustee
with the Bankruptcy Court and served upon counsel for the Debtors, the Committee
and the U.S. Trustee, (a) the Confirmation Order shall be vacated, (b) no
distributions under the Plan shall be made, (c) the Debtors and all holders of
Claims and Interests shall be restored to the status quo ante as of the day
immediately preceding the Confirmation Date as though the Confirmation Date had
never occurred, and (d) all obligations of each Debtor with respect to the
Claims and Interests shall remain unchanged and nothing contained herein shall
be deemed to constitute a waiver or release of any Claims against the Trustee or
the Debtors or any claims of the Debtors against any other Person or to
prejudice in any manner the rights of the Trustee or the Debtors or any other
Person in any further proceedings involving the Debtors.
ARTICLE XIV
RETENTION OF JURISDICTION
14.1 WITHDRAWAL OF REFERENCE BY THE DISTRICT COURT.
On or after the Effective Date, the District Court shall withdraw the
reference of the Chapter 11 Cases to the extent required to exercise original,
exclusive jurisdiction over the following:
(a) the administration of each Liquidating LLC, pursuant
to, inter alia, the Plan, the Confirmation Order and each respective
Liquidating LLC Agreement;
(b) the disposition of the Assets transferred to each
Liquidating LLC;
(c) the distributions required to be made under the Plan
after the Effective Date; and
(d) such other matters as may be related to the Plan, the
administration of Claims, or the SEC Litigation, other than as set
forth in Section 14.2 below (provided however, that the District Court
may at any time withdraw the reference of any matter, on appropriate
application by the Trustee or otherwise).
14.2 RETENTION OF JURISDICTION BY THE BANKRUPTCY COURT.
By operation of the Plan, the Bankruptcy Court, pursuant to section
105(a) and 1142 of the Bankruptcy Code, shall retain jurisdiction over the
Chapter 11 Cases only:
(a) to hear and determine pending motions for the
assumption or rejection of executory contracts or unexpired leases or
the assumption and assignment, as the case may be, of executory
contracts or unexpired leases to which any Debtor is a party or with
respect to which any Debtor may be liable, and to hear and determine
the allowance of Claims resulting therefrom including cure amounts, if
any, required;
(b) to hear and determine any and all objections to the
allowance or estimation of Claims;
(c) to hear and determine such litigation as may be
commenced by the ICA Trustee in the Bankruptcy Court on or after the
Effective Date to collect assets of the Debtors;
(d) to hear and determine the matters specifically
identified in section 14.3 hereof;
(e) to enter and implement such orders as may be
appropriate if the Confirmation Order is for any reason stayed,
revoked, modified or vacated;
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(f) to hear and determine applications for allowance of
Professional Claims and all other applications for fees or
reimbursement of expenses under the Plan or under sections 330, 331,
503(b), 1103 and 1129(a)(4) of the Bankruptcy Code (provided, however,
that professionals engaged by the ICA Trustee shall seek approval of
their final applications for allowance of fees and expenses from the
District Court);
(g) to determine requests for the payment of Claims under
section 507(a)(1) of the Bankruptcy Code, including compensation and
expenses of parties entitled thereto;
(h) such other matters as the District Court may refer to
the Bankruptcy Court; and
(i) promptly after satisfaction of the matters set forth
in (a) through (h) hereof, to enter a final decree closing the Chapter
11 Cases.
14.3 JURISDICTION OVER CERTAIN DISPUTES INVOLVING IBF HOTEL.
Notwithstanding anything to the contrary contained herein, and
notwithstanding entry of the Confirmation Order and the occurrence of the
Effective Date, the Bankruptcy Court shall retain jurisdiction to adjudicate any
declaratory judgment or other action, as permitted by Bankruptcy Rules 7001, et
seq., pending on the Effective Date or brought thereafter, to determine the
respective rights of IBF Hotel, any of its assignees, any representative of its
Estate (including without limitation any Liquidating Agent under this Plan),
370-372 Canal Street, LLC, 13-15 Lispenard Street, LLC and any other interested
party in connection with: (i) certain prepetition agreements entered into
between IBF Hotel and 370-372 Canal Street, LLC, and between IBF Hotel and 13-15
Lispenard Street, LLC; and (ii) all funds presently held in escrow pursuant to
such agreements.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 MODIFICATION AND AMENDMENTS.
The Trustee may alter, amend or modify the Plan in accordance with
section 1127(a) of the Bankruptcy Code at any time prior to Confirmation. On and
after the Confirmation Date but prior to substantial consummation of the Plan as
defined in section 1101(2) of the Bankruptcy Code, the Trustee may, under
section 1127(b) of the Bankruptcy Code, institute proceedings in the Bankruptcy
Court to remedy any defect or omission or reconcile any inconsistencies in the
Plan, the Disclosure Statement or the Confirmation Order, and such matters as
may be necessary to carry out the purposes and effects of the Plan, so long as
such proceedings do not materially adversely affect the treatment of holders of
Claims or Interests under the Plan; provided, however, that prior notice of such
proceedings shall be served in accordance with the Bankruptcy Rules or any
orders of court.
15.2 BINDING EFFECT; SUCCESSORS AND ASSIGNS.
On the Effective Date, the Plan shall be binding upon, and inure to the
benefit of, the Debtors and all present and former holders of Claims or
Interests, and their respective successors and assigns, whether or not the
Claims or Interests of such holders are Impaired under the Plan and whether or
not such holders have accepted the Plan.
15.3 EXCLUSIVITY.
The Trustee shall have the exclusive right to amend or modify the Plan
and to solicit acceptances of any amendments or modifications through the
Effective Date.
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15.4 REVOCATION, WITHDRAWAL OR NON-CONSUMMATION.
The Trustee shall have the right to revoke or withdraw the Plan at any
time prior to the Effective Date. If revoked or withdrawn prior to the Effective
Date, or if the Confirmation Date or the Effective Date does not occur, then the
Plan, any settlement or compromise embodied in the Plan (including the fixing or
limiting to an amount any Claim or Class), the assumption or rejection of
executory contracts or leases effected by the Plan, and any document or
agreement executed or to be executed pursuant to the Plan shall be null and void
and of no effect. In such event, nothing contained herein, and no acts taken to
implement the Plan, shall be deemed to constitute a waiver or release of any
Claims against the Debtors or any other Person or any claims by the Trustee or
the Debtors against any Person, to prejudice in any manner the rights of the
Trustee, the Debtors or any Person in any further proceedings involving the
Debtors or to constitute an admission of any sort by the Trustee, the Debtors or
any other Person.
15.5 TERMINATION OF COMMITTEE.
On the Effective Date, the Committee shall cease to exist and its
members, employees or agents (including without limitation, attorneys,
investment bankers, financial advisors, accountants and other professionals)
shall be released and discharged from any further authority, duties,
responsibilities and obligations relating to, arising from, or in connection
with the Committee. The Committee shall continue to exist after such date solely
with respect to all applications seeking payment of Professional Fees or
Committee Fees, and any matters pending as of the Effective Date in the Chapter
11 Cases, until such matters are finally resolved.
15.6 NOTICES.
Any notice required or permitted under the Plan shall be (a) in
writing, (b) served by (i) certified mail, return receipt requested, (ii) hand
delivery, or (iii) overnight delivery service, and (c) deemed to have been given
or made when actually delivered, to the following addresses:
If to the Trustee:
Arthur J. Steinberg
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Telephone: 212/836-8000
Facsimile: 212/836-7157
with a copy to:
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Attn: Andrew A. Kress
Telephone: 212/836-8000
Facsimile: 212/836-7157
If to the Debtors:
InterBank Funding Corp.
1733 Connecticut Ave., N.W.
Washington, DC 20009
Attention: W. Thomas Fleming
Telephone: 202/588-7500
Facsimile: 202/588-9157
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with a copy to:
Swidler Berlin Shereff Friedman, LLP
405 Lexington Ave.
New York, NY 10174
Attn: Neil P. Forrest
Telephone: 212/891-9240
Facsimile: 212/891-9598
If to the Committee:
Schulte Roth & Zabel
919 Third Avenue
New York, New York 10022
Attn: James M. Peck
Telephone: 212/756-2000
Facsimile: 212/593-5955
If to the U.S. Trustee:
Office of the U.S. Trustee
33 Whitehall St., 21st floor
New York, NY 10004
Attn: Gregory M. Zipes
Telephone: (212) 510-0500
15.7 SEVERABILITY OF PLAN PROVISIONS.
In the event that the Bankruptcy Court determines, prior to the
Confirmation Date, that any provision in the Plan is invalid, void or
unenforceable, the Trustee may, at his discretion, (a) treat such provision as
invalid, void or unenforceable, in which case such provision shall in no way
limit or affect the enforceability and operative effect of any other provision
of the Plan, or (b) alter, amend, revoke, or withdraw the Plan.
15.8 FEES OF THE U.S. TRUSTEE.
All fees payable pursuant to section 1930 of title 28 of the U.S. Code,
as determined by the Bankruptcy Court at the Confirmation Hearing, shall be paid
by the Effective Date. After the Effective Date, the Liquidating LLCs shall pay
all required fees pursuant thereto without further order of the Bankruptcy
Court.
15.9 FILING OF PLAN DOCUMENTS/EXHIBITS.
Not less than ten (10) days prior to commencement of the Confirmation
Hearing, the Trustee shall file with the Bankruptcy Court such exhibits,
agreements and other documents as may be necessary or appropriate to effectuate
the terms and conditions of the Plan and the Disclosure Statement. Upon such
filing, such documents may be inspected in the office of the clerk of the
Bankruptcy Court during normal business hours. Holders of Claims or Interests
may also obtain a copy of any such document upon written request to The Garden
City Group, Inc., InterBank Funding Corp. Claims Agent, 105 Maxess Rd.,
Melville, New York 11747-3836, fax (631) 940-6554. The Trustee explicitly
reserves the right to modify or make additions to or subtractions from any
schedule to the Plan and to modify any exhibit at any time prior to conclusion
of the Confirmation Hearing.
15.10 GOVERNING LAW; CONSTRUCTION.
Unless a rule of law or procedure is supplied by federal law (including
the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically
stated in any agreement, document or instrument executed in connection with the
Plan, the substantive and procedural laws of the State of New York shall govern
the construction
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and implementation of the Plan, and any agreements, documents and instruments
executed in connection with the Plan, without reference to any conflict or
choice of laws principles. To the extent the provisions of the Plan conflict
with the terms and conditions of any Transaction Documents or any other
agreement, document or instrument executed in connection herewith), the
provisions of the Plan shall govern.
Dated: New York, New York
August 14, 2003
Arthur J. Steinberg, as ICA Trustee of
IBF VI-Secured Lending Corporation and
IBF Collateralized Finance Corporation
By: /s/ Andrew A. Kress
-------------------------------------
Andrew A. Kress (AK 8985)
Kaye Scholer LLP
425 Park Avenue
New York, NY 10022
telephone: 212/836-8000
facsimile: 212/836-7157
-and-
D. Tyler Nurnberg (IL #6225750)
Kaye Scholer LLC
Three First National Plaza
70 W. Madison St., suite 4100
Chicago, IL 60602
telephone: 312/583-2300
facsimile: 312/583-2360
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