Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ----------------------------------------x
:
In re : Chapter 11 Case Nos.
:
LORAL SPACE : LEAD CASE 03-41710 (RDD)
& COMMUNICATIONS LTD., et al., : 03-41709 (RDD) through
: 03-41728 (RDD)
Debtors. : (Jointly Administered)
:
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DEBTORS' JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Loral Space & Communications Ltd., Loral Space & Communications
Corporation, Loral SpaceCom Corporation, Loral Satellite, Inc., Space
Systems/Loral, Inc., Loral Communications Services, Inc., Loral Ground Services,
L.L.C., Loral Orion, Inc., Loral CyberStar Global Services, Inc., Loral
Cyberstar GmbH, Loral CyberStar Japan, Inc., Loral CyberStar Services, Inc.,
Loral CyberStar Holdings, L.L.C., Loral CyberStar International, Inc., Loral
Asia Pacific Satellite (HK) Limited, SS/L Export Corporation, CyberStar, L.P.,
CyberStar, L.L.C., Loral Skynet Network Services, Inc., and Loral Licensing Ltd.
propose the following Chapter 11 Plan of Reorganization, pursuant to section
1121(a) of title 11 of the United States Code:
SECTION 1. DEFINITIONS AND INTERPRETATION
A. DEFINITIONS.
The following terms used herein shall have the respective meanings
defined below (such meanings to be equally applicable to both the singular and
plural):
1.1. ADMINISTRATIVE EXPENSE CLAIM means any Claim against any
Debtor constituting a cost or expense of administration of the Reorganization
Cases allowed under sections 503(b), 507(a)(1), and 1114(e) of the Bankruptcy
Code, including, without limitation, any actual and necessary costs and expenses
of preserving the Debtors' estates, any actual and necessary costs and expenses
of operating the Debtors' business, any indebtedness or obligations incurred or
assumed by the Debtors, as Debtors in Possession, during the Reorganization
Cases, including, without limitation, for the acquisition or lease of property
or an interest in property or the rendition of services, any allowances of
compensation and reimbursement of expenses to the extent allowed by Final Order
under section 330 or 503 of the Bankruptcy Code, the Indenture Trustee Fees and
any fees or charges assessed against the Debtors' estates under section 1930 of
chapter 123 of title 28 of the United States Code.
1.2. AGENT means Bank of America, N.A., in its capacity as
administrative agent for the Debtors' prepetition secured lenders under (i) that
certain Amended and Restated Credit Agreement dated as of December 21, 2001, as
amended, supplemented or otherwise modified and (ii) that certain
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Credit Agreement dated as of November 17, 2000, as heretofore amended,
supplemented or otherwise modified.
1.3. ALLOWED means, with reference to any Claim, (i) any Claim
against any Debtor which has been listed by the Debtors in the Schedules, as
such Schedules may be amended by the Debtors from time to time in accordance
with Bankruptcy Rule 1009, as liquidated in amount and not disputed or
contingent and for which no contrary proof of claim has been filed, (ii) any
timely filed Claim against any Debtor as to which no objection has been
interposed in accordance with Section 7.1 of the Plan of Reorganization or such
other applicable period of limitation fixed by the Bankruptcy Code, the
Bankruptcy Rules, or the Bankruptcy Court, or as to which any objection has been
determined by a Final Order to the extent such objection is determined in favor
of the respective holder of such Claim, (iii) any Claim against any Debtor
expressly allowed by a Final Order or under the Plan of Reorganization, or (iv)
any Claim against any Debtor that is compromised, settled, or otherwise resolved
pursuant to the authority granted to the Reorganized Debtors pursuant to a Final
Order of the Bankruptcy Court or under Sections 7.1, 7.4, or 7.5 of the Plan of
Reorganization; provided, however, that Claims allowed solely for the purpose of
voting to accept or reject the Plan of Reorganization pursuant to an order of
the Bankruptcy Court shall not be considered "Allowed Claims" under the Plan of
Reorganization. Unless otherwise specified under the Plan of Reorganization or
by order of the Bankruptcy Court, "Allowed Administrative Expense Claim" or
"Allowed Claim" shall not, for any purpose under the Plan of Reorganization,
include interest on such Administrative Expense Claim or Claim from and after
the Commencement Date.
1.4. BALLOTS means the forms distributed to each holder of an
impaired Claim entitled to vote, on which is to be indicated acceptance or
rejection of the Plan of Reorganization.
1.5. BANKRUPTCY CODE means title 11 of the United States Code, as
amended from time to time, as applicable to the Reorganization Cases.
1.6. BANKRUPTCY COURT means the United States Bankruptcy Court for
the Southern District of New York having jurisdiction over the Reorganization
Cases and, to the extent of any reference made under section 157 of title 28 of
the United States Code, the unit of such District Court having jurisdiction over
the Reorganization Cases under section 151 of title 28 of the United States
Code.
1.7. BANKRUPTCY RULES means the Federal Rules of Bankruptcy
Procedure as promulgated by the United States Supreme Court under section 2075
of title 28 of the United States Code, as amended from time to time, applicable
to the Reorganization Cases, and any Local Rules of the Bankruptcy Court.
1.8. BERMUDA ACCOUNT means the funds not to exceed an amount to be
agreed upon among the Debtors, the Creditors' Committee and the JPLs (plus any
accrued interest thereon) from Ltd.'s bank account to be maintained in Bermuda.
1.9. BERMUDA CONTINGENCY FUND shall have the meaning ascribed to it
in Section 6.6(f) of the Plan of Reorganization.
1.10. BERMUDA LIQUIDATION FUND shall have the meaning ascribed to it
in Section 6.6(e) of the Plan of Reorganization.
1.11. BERMUDIAN DEBTORS means Ltd. and Loral Licensing Ltd.
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1.12. BUSINESS DAY means any day other than a Saturday, a Sunday, or
any other day on which banking institutions in New York, New York are required
or authorized to close by law or executive order.
1.13. CASH means legal tender of the United States of America.
1.14. CHARGING LIEN means any Lien or other priority in payment
arising prior to the Effective Date to which the applicable Indenture Trustee is
entitled, pursuant to each of the Indentures, against distributions to be made
to holders of Claims of the Ltd. Notes, Orion 10% Notes and the Orion Stub Notes
for payment of any Indenture Trustee Fees.
1.15. CLAIM has the meaning set forth in section 101 of the
Bankruptcy Code.
1.16. CLASS means any group of Claims or Equity Interests classified
by the Plan of Reorganization as set forth in Section 3 of the Plan of
Reorganization.
1.17. CLASS 4 PRO RATA SHARE means the ratio (expressed as a
percentage) of the amount of an Allowed Orion General Unsecured Claim to the
aggregate amount of (a) all Allowed Orion General Unsecured Claims and (b) the
Disputed Claim Amount of all Disputed Claims in Class 4.
1.18. CLASS 5 PRO RATA SHARE means the ratio (expressed as a
percentage) of the amount of an Allowed Loral General Unsecured Claim to the
aggregate amount of (a) Allowed Loral General Unsecured Claims and (b) the
Disputed Claim Amount of all Disputed Claims in Class 5.
1.19. COLLATERAL means any property or interest in property of the
Debtors' estates subject to a Lien, charge, or other encumbrance to secure the
payment or performance of a Claim, which Lien, charge, or other encumbrance is
not subject to avoidance under the Bankruptcy Code.
1.20. COMMENCEMENT DATE means July 15, 2003, the date on which the
Debtors commenced the Reorganization Cases.
1.21. CONFIRMATION DATE means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order.
1.22. CONFIRMATION HEARING means the hearing to be held by the
Bankruptcy Court regarding confirmation of the Plan of Reorganization, as such
hearing may be adjourned or continued from time to time.
1.23. CONFIRMATION ORDER means the order of the Bankruptcy Court
confirming the Plan of Reorganization pursuant to section 1129 of the Bankruptcy
Code.
1.24. CONSOLIDATED DEBTORS means each of the Debtors, other than
Orion and its Debtor subsidiaries, as consolidated under Section 5.1(a) of the
Plan of Reorganization.
1.25. CONSOLIDATED ORION means Orion and its Debtor subsidiaries as
consolidated under Section 5.1(b) of the Plan of Reorganization.
1.26. CONTINGENT CLAIM means any Claim, the liability for which
attaches or is dependent upon the occurrence or happening, or is triggered by,
an event, which event has not yet occurred, happened, or been triggered, as of
the date on which such Claim is sought to be estimated or an objection to such
Claim is filed, whether or not such event is within the actual or presumed
contemplation
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of the holder of such Claim and whether or not a relationship between the holder
of such Claim and the applicable Debtor now or hereafter exists or previously
existed.
1.27. CREDITORS' COMMITTEE means the statutory committee of
unsecured creditors appointed pursuant to section 1102 of the Bankruptcy Code in
the Reorganization Cases.
1.28. DEBTOR INTERCOMPANY CLAIM means any Claim against any Debtor
held by any of the other Debtors.
1.29. DEBTORS means each of the entities listed on Schedule A to the
Plan of Reorganization.
1.30. DEBTORS IN POSSESSION means the Debtors in their capacity as
debtors in possession in the Reorganization Cases pursuant to sections 1101,
1107(a), and 1108 of the Bankruptcy Code.
1.31. DISALLOWED CLAIM means a Claim that is disallowed in its
entirety by an order of the Bankruptcy Court or such other court of competent
jurisdiction.
1.32. DISCHARGE DATE means the latest of the dates on which the JPLs
are discharged by orders of the Supreme Court of Bermuda as joint provisional
liquidators in the provisional liquidations of each of the Bermudian Debtors.
1.33. DISCLOSURE STATEMENT means the disclosure statement related to
the Plan of Reorganization filed with and approved by the Bankruptcy Court, as
such disclosure statement may be amended, modified or supplemented.
1.34. DISPUTED CLAIM means any Claim against any Debtor proof of
which was timely and properly filed, and in such case or in the case of an
Administrative Expense Claim, any Claim or Administrative Expense Claim which is
disputed under the Plan of Reorganization or as to which the Debtors have
interposed a timely objection and/or request for estimation in accordance with
section 502(c) of the Bankruptcy Code and Bankruptcy Rule 3018, which objection
and/or request for estimation has not been withdrawn or determined by a Final
Order, and any Claim proof of which was required to be filed by order of the
Bankruptcy Court but as to which a proof of claim was not timely or properly
filed. A Claim that is disputed by the Debtors as to its amount only, shall be
deemed Allowed in the amount the Debtors admit owing, if any, and disputed as to
the excess.
1.35. DISPUTED CLAIM AMOUNT means the Estimated Amount of a Disputed
Claim, or, if no Estimated Amount exists, the amount set forth in the proof of
claim relating to such Disputed Claim as the liquidated amount of such Disputed
Claim.
1.36. DISTRIBUTION DATE means (i) the Initial Distribution Date,
(ii) the first Business Day after the end of the months of March, June,
September and December, commencing with the first such date to occur not more
than 90 days after the Effective Date and (iii) the Final Distribution Date.
1.37. DISTRIBUTION RECORD DATE means, with respect to all Classes,
the date of the Confirmation Order.
1.38. EFFECTIVE DATE means a Business Day on or after the
Confirmation Date specified by the Debtors, after consultation with the
Creditors' Committee, on which (i) no stay of the
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Confirmation Order is in effect and (ii) the conditions to the effectiveness of
the Plan of Reorganization specified in Section 11 of the Plan of Reorganization
have been satisfied or waived.
1.39. ESTIMATED AMOUNT means the estimated dollar value of an
Unliquidated Claim, Disputed Claim, or Contingent Claim pursuant to section
502(c) of the Bankruptcy Code or as otherwise agreed to between the holder of
such Claim and the applicable Debtor or Reorganized Debtor.
1.40. EQUITY INTERESTS means the interests of any holder of an
equity security of any of the Debtors represented by any issued and outstanding
shares of common stock or preferred stock or other instrument evidencing a
present ownership interest in any of the Debtors, including the Ltd. Preferred
Stock Interests, whether or not transferable, or any option, warrant, or right,
contractual or otherwise, to acquire any such interest.
1.41. FINAL DISTRIBUTION DATE means, with respect to each of Class 4
and Class 5, a date on or after the Initial Distribution Date and after all
Disputed Claims in Class 4 and Class 5 have become either Allowed Claims or
Disallowed Claims that is selected by New Loral, in its discretion but, in any
event, is no later than thirty (30) days thereafter, or such later date as the
Bankruptcy Court may establish, upon request by New Loral for cause shown.
1.42. FINAL ORDER means an order or judgment of the Bankruptcy Court
entered by the Clerk of the Bankruptcy Court on the docket in the Reorganization
Cases, which has not been reversed, vacated, or stayed, and as to which (i) the
time to appeal, petition for certiorari, or move for a new trial, reargument, or
rehearing has expired, and as to which no appeal, petition for certiorari, or
other proceedings for a new trial, reargument, or rehearing shall then be
pending, or (ii) if an appeal, writ of certiorari, new trial, reargument, or
rehearing thereof has been sought, such order or judgment of the Bankruptcy
Court shall have been affirmed by the highest court to which such order was
appealed, or certiorari shall have been denied, or a new trial, reargument, or
rehearing shall have been denied or resulted in no modification of such order,
and the time to take any further appeal, petition for certiorari or move for a
new trial, reargument, or rehearing shall have expired; 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
relating to such order shall not cause such order to not be a Final Order.
1.43. HSBC BANK means HSBC Bank, USA National Association formerly
known as HSBC Bank USA, successor Indenture Trustee for the Ltd. Notes.
1.44. INDENTURE(S) means, individually and collectively, the
indentures under which the Ltd. Notes, Orion 10% Notes and Orion Stub Notes were
issued, as such indentures are or have been amended, modified or supplemented
from time to time.
1.45. INDENTURE TRUSTEE(S) means, individually and collectively, the
respective indenture trustee, including, without limitation, HSBC Bank, or its
successor, in either case in its capacity as the indenture trustee for the Ltd.
Notes, the Orion 10% Notes and the Orion Stub Notes.
1.46. INDENTURE TRUSTEE FEES means the reasonable fees and expenses,
including, without limitation, reasonable attorneys' fees and disbursements,
incurred by the Indenture Trustee, whether prior to or after the Commencement
Date and through the Effective Date.
1.47. INDEPENDENT FEE ASSESSOR means Christopher Hughes of Talbot
Hughes McKillop in his capacity as assessor of the fees and expenses of the JPLs
and their retained professionals, having been so appointed by the Supreme Court
of Bermuda on March 18, 2004.
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1.48. INDEPENDENT FEE ASSESSOR FEE AND EXPENSE CLAIMS means the fees
and expenses of the Independent Fee Assessor.
1.49. INITIAL DISTRIBUTION DATE means a date on or after the
Effective Date that is selected by New Loral in its discretion but, in any
event, is within fifteen (15) days after the Effective Date, or such later date
as the Bankruptcy Court may establish upon request by New Loral for cause shown.
1.50. JPLS means the persons from time to time serving as joint
provisional liquidators in the provisional liquidation of the Bermudian Debtors,
who are currently Michael Morrison of KPMG in Bermuda and Phil Wallace and Chris
Laverty, both of KPMG LLP in England.
1.51. JPL FEE AND EXPENSE CLAIMS means the fees and expenses of the
JPLs and their retained professionals as reviewed by the Independent Fee
Assessor and approved by order of the Supreme Court of Bermuda.
1.52. JPL FEE AND EXPENSE CLAIM RESERVE means that certain escrow
account established under Bermuda law and subject to the exclusive jurisdiction
of the Supreme Court of Bermuda pursuant to Section 6.6 of the Plan of
Reorganization to hold the funds reserved to satisfy the fees and expenses of
the JPLs and their retained professionals in accordance with Section 6.6 of the
Plan of Reorganization.
1.53. LIEN has the meaning set forth in section 101 of the
Bankruptcy Code.
1.54. LORAL CORP. means Loral Space & Communications Corporation, a
Delaware corporation, as Debtor and Debtor in Possession.
1.55. LORAL GENERAL UNSECURED CLAIM means any Claim against any
Debtor that is not an Administrative Expense Claim, Priority Tax Claim, Other
Priority Claim, Secured Tax Claim, Secured Claim, Orion Note Claim, Orion
General Unsecured Claim, Debtor Intercompany Claim, Non-Debtor Intercompany
Claim, or Securities Litigation Claim. The term Loral General Unsecured Claim
includes all Ltd. Guaranty Claims and all Ltd. Note Claims.
1.56. LTD. means Loral Space & Communications Ltd., a Bermuda
corporation, as Debtor and Debtor in Possession.
1.57. LTD. GUARANTY CLAIMS means all Claims against Ltd. arising
under that certain Guaranty, dated as of December 21, 2001, between Ltd. and
Bankers Trust Company, pursuant to which Ltd. guaranteed payment of the Orion
10% Notes.
1.58. LTD. NOTE CLAIMS means all Claims arising under the Ltd.
Notes.
1.59. LTD. NOTES means the 9 1/2% Senior Notes due 2006 in the
aggregate principal amount of $350,000,000 issued by Ltd. under the Indenture,
dated January 15, 1999.
1.60. LTD. PREFERRED STOCK INTEREST means any interest in the (i)
$745,000,000 6% Series C Convertible Redeemable Preferred Stock due 2006 of Ltd.
or (ii) $400,000,000 6% Series D Convertible Redeemable Preferred Stock due 2007
of Ltd.
1.61. NEW FSS means the wholly-owned subsidiary of New Loral on and
after the Effective Date after giving effect to the Restructuring Transactions
contemplated in Section 5.2 of the
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Plan of Reorganization, the assets of which consist of substantially all of the
assets or equity interests of all of the Debtors other than SS/L.
1.62. NEW FSS NOTES means the senior secured notes issued by New FSS
in the principal amount of $200 million with a seven-year term, bearing interest
at the rate of 14% per annum payable semi-annually (9% of such interest shall be
payable in-kind in year 1 and 7% of such interest shall be payable in-kind in
year 2) with the entire principal amount payable upon maturity.
1.63. NEW FSS NOTES INDENTURE means the senior secured notes
indenture dated as of the Effective Date between New FSS and an indenture
trustee to be selected by New FSS, governing the New FSS Notes, which shall be
substantially in the form set forth in the Plan Supplement.
1.64. NEW LORAL means Loral Corp. on and after the Effective Date
after giving effect to the Restructuring Transactions contemplated in Section
5.2 of the Plan of Reorganization.
1.65. NEW LORAL BOARD means the Board of Directors of New Loral as
more fully described in Section 9.2(a) of the Plan of Reorganization.
1.66. NEW LORAL BYLAWS means the Bylaws of New Loral and which shall
be substantially in the form set forth in the Plan Supplement.
1.67. NEW LORAL CERTIFICATE OF INCORPORATION means the Certificate
of Incorporation of New Loral and which shall be substantially in the form set
forth in the Plan Supplement.
1.68. NEW LORAL COMMON STOCK means the shares of common stock, $0.01
par value, of New Loral, authorized and issued hereunder to be delivered to
holders of certain Claims under the Plan of Reorganization or authorized for the
purposes specified herein in connection with the New Management Stock Plan.
1.69. NEW LORAL COMMON STOCK BALANCE means a number of shares of New
Loral Common Stock having a value equal to the total equity value of New Loral
Common Stock on the Effective Date (as set forth in the Disclosure Statement)
minus the Orion Equity Value.
1.70. NEW LORAL EMPLOYMENT CONTRACTS means the fourteen (14)
employment contracts between the applicable Reorganized Debtor and certain
executives who will be designated in the Plan Supplement, substantially in the
form set forth in the Plan Supplement.
1.71. NEW MANAGEMENT STOCK PLAN means the Management Stock Plan to
be adopted by New Loral on the Effective Date, as more fully described in
Section 9.6 of the Plan of Reorganization, which shall be substantially in the
form set forth in the Plan Supplement.
1.72. NEW SS/L means the wholly-owned subsidiary of New Loral on and
after the Effective Date after giving effect to the Restructuring Transactions
contemplated in Section 5.2 of the Plan of Reorganization the assets of which
consist of the assets of SS/L.
1.73. NON-DEBTOR means any direct or indirect subsidiary or
affiliate of Ltd. that is not one of the Debtors listed on Schedule A to the
Plan of Reorganization.
1.74. NON-DEBTOR INTERCOMPANY CLAIM means any Claim against any
Debtor held by any Non-Debtor.
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1.75. NOTE CLAIMS means all Claims arising under the Ltd. Notes, the
Orion 10% Notes and the Orion Stub Notes.
1.76. OPTIONS means the options to be issued under the New
Management Stock Plan.
1.77. ORION means Loral Orion, Inc., a Delaware corporation, as
Debtor and Debtor in Possession.
1.78. ORION EQUITY VALUE means the enterprise value of Orion
immediately preceding the Effective Date as set forth in the Disclosure
Statement, minus the face amount of the New FSS Notes on the Effective Date.
1.79. ORION GENERAL UNSECURED CLAIM means any Claim against Orion
that is not an Administrative Expense Claim, Priority Tax Claim, Other Priority
Claim, Secured Tax Claim, Secured Claim, Debtor Intercompany Claim, Non-Debtor
Intercompany Claim, or Securities Litigation Claim. The term Orion General
Unsecured Claim includes all Orion Note Claims.
1.80. ORION NOTE CLAIMS means, collectively, the Orion 10% Notes
Claims and the Orion Stub Notes Claims.
1.81. ORION 10% NOTES CLAIMS means all Claims arising under the
Orion 10% Notes other than the Ltd. Guaranty Claims.
1.82. ORION 10% NOTES means the 10% Senior Notes due 2006 in the
aggregate principal amount of $612,704,000 issued by Orion, which are guaranteed
by Ltd. and Loral Asia Pacific Satellite (H/K) Limited, a subsidiary of Orion.
1.83. ORION STUB NOTES means (i) the 11 1/4% Senior Notes due 2007
in the aggregate principal amount of $36,627,000 and (ii) the 12 1/2% Senior
Discount Notes due 2007 in the aggregate principal amount of $49,071,000, issued
by Orion, which are guaranteed by various of the Debtors' Cyberstar entities and
Orionnet, Inc., a Non-Debtor.
1.84. ORION STUB NOTES CLAIMS means all Claims arising under the
Orion Stub Notes.
1.85. OTHER EQUITY INTERESTS means all common stock, warrants,
options and other equity issued by each of the Debtors, other than the Ltd.
Preferred Stock Interests.
1.86. OTHER PRIORITY CLAIM means any Claim against any Debtor other
than an Administrative Expense Claim or a Priority Tax Claim that is entitled to
priority in payment as specified in section 507(a)(3), (4), (5), (6), (7), or
(9) of the Bankruptcy Code.
1.87. OTHER SECURED CLAIM means any Secured Claim, other than a
Secured Tax Claim.
1.88. PLAN DOCUMENTS means the documents to be executed, delivered,
assumed, and/or performed in conjunction with the consummation of the Plan of
Reorganization on the Effective Date, including but not limited to (i) the New
Loral Bylaws, (ii) the New Loral Certificate of Incorporation, (iii) the
Reorganized Subsidiary Debtors' Bylaws, (iv) the Reorganized Subsidiary Debtors'
Certificates of Incorporation, (v) the New Management Stock Plan, (vi) the New
FSS Notes Indenture, (vii) the New FSS Notes, (viii) New Loral Employment
Contracts, (ix) the Registration Rights Agreement, (x) the SERP Amendment and
(xi) the executory contracts and unexpired leases listed on
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Schedule 8.1. Each of the Plan Documents to be entered into as of the Effective
Date will be filed in draft form in the Plan Supplement.
1.89. PLAN OF REORGANIZATION means this chapter 11 plan of
reorganization, including the Plan Documents, the Plan Supplement, the exhibits
and schedules hereto, as the same may be amended or modified from time to time
in accordance with the provisions of the Bankruptcy Code and the terms of the
Plan of Reorganization.
1.90. PLAN SUPPLEMENT means the forms of documents specified in
Section 13.8 of the Plan of Reorganization.
1.91. PRIORITY TAX CLAIM means any Claim against any Debtor of a
governmental unit of the kind entitled to priority in payment as specified in
sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.92. PRO RATA SHARE means a proportionate share, so that the ratio
of the consideration distributed on account of an Allowed Claim in a Class to
the amount of such Allowed Claim is the same as the ratio of the amount of the
consideration distributed on account of all Allowed Claims in such Class to the
amount of all Allowed Claims in such Class.
1.93. REGISTRATION RIGHTS AGREEMENT means the registration rights
agreement to be entered into pursuant to Section 6.10 of the Plan of
Reorganization.
1.94. REGISTRATION RIGHTS HOLDER means each holder or affiliated
holder of an Allowed Claim (i) receiving distribution pursuant to the Plan of
Reorganization of ten percent (10%) or greater of the New Loral Common Stock,
(ii) that the Debtors, in consultation with the Creditors' Committee, reasonably
determine is an underwriter pursuant to section 1145 of the Bankruptcy Code with
respect to the New Loral Common Stock that such holder received pursuant to the
Plan of Reorganization, (iii) that the Debtors reasonably determine is subject
to resale restrictions on any New Loral Common Stock that such holder received
pursuant to the Plan of Reorganization by operation of Rule 144 of the
Securities Act of 1933, or (iv) that the Debtors and the Creditors' Committee
agree shall be a Registration Rights Holder.
1.95. REORGANIZATION CASES means the cases under chapter 11 of the
Bankruptcy Code commenced by the Debtors on July 15, 2003 in the United States
Bankruptcy Court for the Southern District of New York and styled In re Loral
Space & Communications Ltd., Chapter 11 Case Nos. LEAD CASE 03-41710 (RDD);
03-41709 (RDD) through 03-41728 (RDD).
1.96. REORGANIZED DEBTORS means New Loral and each of the Debtors
listed on Schedule A to the Plan of Reorganization, as reorganized as of the
Effective Date in accordance with the Plan of Reorganization, and their
successors.
1.97. REORGANIZED SUBSIDIARY DEBTORS' BOARDS means, collectively,
the Boards of Directors of the Reorganized Debtors, other than New Loral, as
more fully described in Section 9.2(b) of the Plan of Reorganization.
1.98. REORGANIZED SUBSIDIARY DEBTORS' BYLAWS means, collectively,
the Bylaws of the Reorganized Debtors, other than New Loral and which shall be
substantially in the forms set forth in the Plan Supplement.
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1.99. REORGANIZED SUBSIDIARY DEBTORS' CERTIFICATES OF INCORPORATION
means, collectively, the Certificates of Incorporation of the Reorganized
Debtors, other than New Loral, and which shall be substantially in the forms set
forth in the Plan Supplement.
1.100. RESTRUCTURING TRANSACTIONS means those transactions described
in Section 5.2 of the Plan of Reorganization.
1.101. SCHEDULES means the schedules of assets and liabilities and
the statements of financial affairs filed by the Debtors pursuant to section 521
of the Bankruptcy Code, Bankruptcy Rule 1007, and the Official Bankruptcy Forms
of the Bankruptcy Rules as such schedules and statements have been or may be
supplemented or amended through the Confirmation Date.
1.102. SECURED CLAIM means any Claim against any Debtor to the
extent reflected in the Schedules or a proof of claim as a Secured Claim, which
is secured by a Lien on Collateral to the extent of the value of such
Collateral, as determined in accordance with section 506(a) of the Bankruptcy
Code, or, in the event that such Claim is subject to a permissible setoff under
section 553 of the Bankruptcy Code, to the extent of such permissible setoff.
1.103. SECURED TAX CLAIM means any Secured Claim that, absent its
secured status, would be entitled to priority in right of payment under section
507(a)(8) of the Bankruptcy Code (determined irrespective of any time
limitations therein), and including any related Secured Claim for penalties.
1.104. SECURITIES LITIGATION CLAIM means any Claim against any
Debtor, whether or not the subject of an existing lawsuit, arising from
rescission of a purchase or sale of shares or notes of any of the Debtors and
any affiliate of such Debtor, for damages arising from the purchase or sale of
any such security, or for reimbursement or contribution allowed under section
502 of the Bankruptcy Code on account of any such Claim.
1.105. SERP AMENDMENT means the amendment to the Supplemental
Executive Retirement Plan substantially in the form contained in the Plan
Documents.
1.106. SS/L means Space Systems/Loral, Inc., a Delaware corporation,
as Debtor and Debtor in Possession.
1.107. TAX CODE means the Internal Revenue Code of 1986, as amended.
1.108. TRADING ORDER means the Final Order Pursuant to Sections
105(a) and 362 of the Bankruptcy Code Establishing Notification Procedures and
Approving Restrictions on Certain Transfers of Claims Against and Interests in
the Debtors' Estates, entered by the Bankruptcy Court on October 23, 2003.
1.109. UNLIQUIDATED CLAIM means any Claim, the amount of liability
for which has not been fixed, whether pursuant to agreement, applicable law, or
otherwise, as of the date on which such Claim is sought to be estimated.
1.110. VOTING RECORD DATE means the record date for voting on the
Plan of Reorganization.
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B. INTERPRETATION; APPLICATION OF DEFINITIONS AND RULES OF
CONSTRUCTION.
Unless otherwise specified, all section or exhibit references in the
Plan of Reorganization are to the respective section in, or exhibit to, the Plan
of Reorganization, as the same may be amended, waived, or modified from time to
time. The words "herein," "hereof," "hereto," "hereunder," and other words of
similar import refer to the Plan of Reorganization as a whole and not to any
particular section, subsection, or clause contained therein. A term used herein
that is not defined herein shall have the meaning ascribed to that term in the
Bankruptcy Code. The rules of construction contained in section 102 of the
Bankruptcy Code shall apply to the Plan of Reorganization. In the event that a
particular term of the Plan of Reorganization (including any exhibits or
schedules hereto) conflicts with a particular term of the definitive
documentation required to be implemented pursuant to the terms of the Plan of
Reorganization or any settlement or other agreement contemplated hereunder, the
definitive documentation shall control and shall be binding on the parties
thereto.
SECTION 2. ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.1. ADMINISTRATIVE EXPENSE CLAIMS.
Except to the extent that a holder of an Allowed Administrative
Expense Claim agrees to a different treatment, each holder of an Allowed
Administrative Expense Claim shall receive Cash in an amount equal to such
Allowed Claim on the Effective Date, or as soon thereafter as is reasonably
practicable; provided, however, that Allowed Administrative Expense Claims
representing liabilities incurred in the ordinary course of business by the
Debtors, as Debtors in Possession, or liabilities arising under loans or
advances to or other obligations incurred by the Debtors, as Debtors in
Possession, whether or not incurred in the ordinary course of business, shall be
paid by the Debtors or the Reorganized Debtors in the ordinary course of
business, consistent with past practice and in accordance with the terms and
subject to the conditions of any agreements governing, instruments evidencing,
or other documents relating to such transactions.
2.2. COMPENSATION AND REIMBURSEMENT CLAIMS.
All entities seeking an award by the Bankruptcy Court of
compensation for services rendered or reimbursement of expenses incurred through
and including the Confirmation Date under section 503(b)(2), 503(b)(3),
503(b)(4), or 503(b)(5) of the Bankruptcy Code (i) shall file their respective
final applications for allowance of compensation for services rendered and
reimbursement of expenses incurred by the date that is ninety (90) days after
the Effective Date and (ii) shall be paid in full in such amounts as are allowed
by the Bankruptcy Court (A) five Business Days after the date upon which the
order relating to any such Administrative Expense Claim is entered or (B) upon
such other terms as may be mutually agreed upon between the holder of such an
Administrative Expense Claim and the Debtors, or, if on or after the Effective
Date, the Reorganized Debtors. The Debtors and the Reorganized Debtors, as
applicable, are authorized to pay compensation for services rendered or
reimbursement of expenses incurred after the Confirmation Date and until the
Effective Date in the ordinary course of business and without the need for
Bankruptcy Court approval.
2.3. INDENTURE TRUSTEE FEES.
Notwithstanding any provision contained in this Plan of
Reorganization to the contrary, all Indenture Trustee Fees shall be paid in Cash
on the Effective Date by the Reorganized Debtors as Administrative Expense
Claims, without the need for application to, or approval of, any court. Each
Indenture Trustee's Charging Lien will be discharged solely upon payment in full
of the Indenture
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Trustee Fees. Nothing herein shall be deemed to impair, waive or discharge the
Charging Lien for any fees and expenses not paid by the Reorganized Debtors.
To the extent that any Indenture Trustee provides services related
to distributions pursuant to the Plan of Reorganization, such Indenture Trustee
will receive from the Reorganized Debtors, without further court approval,
reasonable compensation for such services and reimbursement of reasonable
expenses incurred in connection with such services. These payments will be made
on terms agreed to among the Indenture Trustee and the Reorganized Debtors.
2.4. PRIORITY TAX CLAIMS.
Except to the extent that a holder of an Allowed Priority Tax Claim
agrees to a different treatment, each holder of an Allowed Priority Tax Claim
shall receive, at the option of the Debtors, after consultation with the
Creditors' Committee, (i) Cash in an amount equal to such Allowed Priority Tax
Claim on the Effective Date, or as soon thereafter as is reasonably practicable,
or (ii) equal annual Cash payments commencing on the first anniversary of the
Effective Date in an aggregate amount equal to such Allowed Priority Tax Claim,
together with interest at a fixed annual rate equal to 4 percent (4%), over a
period through the sixth (6th) anniversary of the date of assessment of such
Allowed Priority Tax Claim, subject to the Reorganized Debtors' rights at the
Reorganized Debtors' sole option to prepay the entire amount of the Allowed
Priority Tax Claim. All Allowed Priority Tax Claims that are not due and payable
on or before the Effective Date shall be paid in the ordinary course of business
as such obligations become due.
SECTION 3. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
The following table designates the Classes of Claims against and
Equity Interests in the Debtors and specifies which of those Classes are (i)
impaired or unimpaired by the Plan of Reorganization and (ii) entitled to vote
to accept or reject the Plan of Reorganization in accordance with section 1126
of the Bankruptcy Code or deemed to reject the Plan of Reorganization.
3.1. CLASSES.
Entitled
Class Designation Impairment to Vote
- ------- ------------------------------- ----------- ---------------------
Class 1 Other Priority Claims Unimpaired No
Class 2 Secured Tax Claims Impaired Yes
Class 3 Secured Claims Unimpaired No
Class 4 Orion General Unsecured Claims Impaired Yes
Class 5 Loral General Unsecured Claims Impaired Yes
Class 6 Securities Litigation Claims Impaired No (deemed to reject)
Class 7 Ltd. Preferred Stock Interests Impaired No (deemed to reject)
Class 8 Other Equity Interests Impaired No (deemed to reject)
SECTION 4. TREATMENT OF CLAIMS AND EQUITY INTERESTS
4.1. OTHER PRIORITY CLAIMS (CLASS 1).
Except to the extent that a holder of an Allowed Other Priority
Claim has agreed to a different treatment of such Claim, each such holder shall
receive, in full satisfaction of such Claim, Cash in an amount equal to such
Claim, on or as soon as reasonably practicable after the later of (i) the
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Effective Date, (ii) the date such Claim becomes Allowed and (iii) the date for
payment provided by any agreement or understanding between the applicable Debtor
or Debtors and the holder of such Claim.
4.2. SECURED TAX CLAIMS (CLASS 2).
Except to the extent that a holder of an Allowed Secured Tax Claim
agrees to a different treatment, each holder of an Allowed Secured Tax Claim
shall receive, at the option of the Debtors, in consultation with the Creditors'
Committee, (i) Cash in an amount equal to such Allowed Secured Tax Claim,
including any interest on such Allowed Secured Tax Claim required to be paid in
pursuant to section 506(b) of the Bankruptcy Code, on the later of the Effective
Date and the date such Allowed Secured Tax Claim becomes an Allowed Secured Tax
Claim, or as soon thereafter as is practicable or (ii) equal annual Cash
payments commencing on the first anniversary of the Effective Date in an
aggregate amount equal to such Allowed Secured Tax Claim, together with interest
at a fixed annual rate equal to four (4.0%) percent, over a period through the
sixth (6th) anniversary of the Effective Date, subject to the Reorganized
Debtors' sole option to prepay the entire amount of the Allowed Secured Tax
Claim, or (iii) upon such other terms determined by the Bankruptcy Court to
provide the holder of such Allowed Secured Tax Claim deferred Cash payments
having a value, as of the Effective Date, equal to such Allowed Secured Tax
Claim.
4.3. SECURED CLAIMS (CLASS 3).
Except to the extent that a holder of an Allowed Secured Claim
agrees to a different treatment, each holder of an Allowed Secured Claim shall
receive, in full satisfaction of such Allowed Secured Claim, at the sole option
of the Reorganized Debtors, either (i) Cash in an amount equal to one hundred
percent (100%) of the amount of such Allowed Secured Claim, (ii) the proceeds of
the sale or disposition of the Collateral securing such Allowed Secured Claim to
the extent of the value of the holder's secured interest in such Collateral,
(iii) the Collateral securing such Allowed Secured Claim, or (iv) such other
distribution as necessary to satisfy the requirements of section 1124 of the
Bankruptcy Code. In the event the Reorganized Debtors treat a Claim under clause
(i) or (ii) of this Section, the Liens securing such Secured Claim shall be
deemed released.
4.4. ORION GENERAL UNSECURED CLAIMS (CLASS 4).
Each holder of an Allowed Orion General Unsecured Claim shall
receive from Orion or New FSS on each Distribution Date, in full satisfaction of
such Claim, its Class 4 Pro Rata Share of (i) a number of shares of New Loral
Common Stock having a value equal to the Orion Equity Value and (ii) the New FSS
Notes. In any distribution made to the holder of an Allowed Orion General
Unsecured Claim, there shall be deducted therefrom the amount of all shares of
New Loral Common Stock and New FSS Notes previously distributed to such holder
on account of such Allowed Orion General Unsecured Claim in any distribution
made prior thereto.
4.5. LORAL GENERAL UNSECURED CLAIMS (CLASS 5).
Each holder of an Allowed Loral General Unsecured Claim shall
receive from New Loral on each Distribution Date, in full satisfaction of such
Claim, its Class 5 Pro Rata Share of the New Loral Common Stock Balance. In any
distribution made to the holder of an Allowed Loral General Unsecured Claim,
there shall be deducted therefrom the amount of all shares of New Loral Common
Stock previously distributed to such holder on account of such Allowed Loral
General Unsecured Claim in any distribution made prior thereto.
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4.6. SECURITIES LITIGATION CLAIMS (CLASS 6).
Each holder of an Allowed Securities Litigation Claim shall not
receive or retain any interest or property under the Plan of Reorganization on
account of such Securities Litigation Claim. The treatment of Securities
Litigation Claims under the Plan of Reorganization is in accordance with and
gives effect to the provisions of section 510(b) of the Bankruptcy Code.
4.7. LTD. PREFERRED STOCK INTERESTS (CLASS 7).
Each holder of a Ltd. Preferred Stock Interest shall not receive or
retain any interest or property under the Plan of Reorganization and all Ltd.
Preferred Stock Interests shall be cancelled and extinguished.
4.8. OTHER EQUITY INTERESTS (CLASS 8).
Each holder of an Other Equity Interest shall not receive or retain
any interest or property under the Plan of Reorganization and all Other Equity
Interests shall be cancelled and extinguished (other than any Other Equity
Interests held by another Debtor or Non-Debtor and subject to Section 5.2).
SECTION 5. MEANS FOR IMPLEMENTATION
5.1. SUBSTANTIVE CONSOLIDATION OF THE DEBTORS.
(a) Entry of the Confirmation Order shall constitute the approval,
pursuant to section 105(a) of the Bankruptcy Code, effective as of the Effective
Date, of the substantive consolidation of the Consolidated Debtors for all
purposes related to the Plan of Reorganization, including, without limitation,
for purposes of voting, confirmation, and distribution. On and after the
Effective Date, (i) all assets and liabilities of the Consolidated Debtors shall
be treated, for purposes of the Plan of Reorganization, including, without
limitation, for purposes of voting, confirmation, and distribution, as though
they were merged, (ii) no distributions shall be made under the Plan of
Reorganization on account of any Equity Interest held by a Consolidated Debtor
in any other Consolidated Debtor, (iii) all guarantees of any Consolidated
Debtor of the obligations of any other Consolidated Debtor shall be eliminated
so that any Claim against any Consolidated Debtor and any guarantee thereof
executed by any other Consolidated Debtor and any joint or several liability of
any of the Consolidated Debtors shall be one obligation of the Consolidated
Debtors and (iv) each and every Claim filed or to be filed in the Reorganization
Cases of any of the Consolidated Debtors shall be deemed filed against the
Consolidated Debtors and shall be one Claim against and obligation of the
Consolidated Debtors.
(b) Entry of the Confirmation Order shall constitute the approval,
pursuant to section 105(a) of the Bankruptcy Code, effective as of the Effective
Date, of the substantive consolidation of Consolidated Orion for all purposes
related to the Plan of Reorganization, including, without limitation, for
purposes of voting, confirmation, and distribution. On and after the Effective
Date, (i) all assets and liabilities of Consolidated Orion shall be treated, for
purposes of the Plan of Reorganization, including, without limitation, for
purposes of voting, confirmation, and distribution, as though they were merged,
(ii) no distributions shall be made under the Plan of Reorganization on account
of any Equity Interest held by Consolidated Orion in any of Orion or its Debtor
subsidiaries, (iii) all guarantees of Orion or its Debtor subsidiaries of any of
Consolidated Orion shall be eliminated so that any Claim against Consolidated
Orion and any guarantee thereof executed by Orion or its Debtor subsidiaries and
any joint or several liability of any of Orion and its Debtor subsidiaries shall
be one obligation of Consolidated Orion and (iv) each and every Claim filed or
to be filed in the Reorganization Cases of Orion or its Debtor subsidiaries
shall be deemed filed against Consolidated Orion and shall be one Claim against
and obligation of Consolidated Orion.
14
The substantive consolidation effected pursuant to Sections 5.1(a)
and 5.1(b) shall not (other than for purposes related to funding distributions
under the Plan of Reorganization and as set forth above in such sections)
affect: (i) the legal and organizational structure of the Debtors; (ii) pre and
post-Commencement Date guarantees, Liens, and security interests that are
required to be maintained (A) in connection with executory contracts or
unexpired leases that were entered into during the Reorganization Cases or that
have been or will be assumed or (B) pursuant to the Plan of Reorganization; or
(iii) distributions out of any insurance policies or proceeds of such policies.
5.2. RESTRUCTURING TRANSACTIONS.
(a) On the Effective Date, the assets of Ltd. shall be transferred
to New Loral or a wholly-owned first-tier subsidiary of New Loral in exchange
for the New Loral Common Stock to be distributed to holders of Allowed Claims
against Ltd. pursuant to the Plan of Reorganization.
(b) On or as of the Effective Date, or as soon thereafter as
practicable, within the discretion of the Debtors, after consultation with the
Creditors' Committee, and without further motion to or order of the Bankruptcy
Court, the Debtors may, notwithstanding any other transactions described in this
Section 5.2, merge, dissolve, transfer assets, or otherwise consolidate any of
the Debtors in furtherance of the Plan of Reorganization. It is the current
intention of the Debtors to utilize this provision to merge, dissolve, or
otherwise consolidate certain of their affiliates and transfer certain executory
contracts, unexpired leases, and other assets to the surviving affiliates. Any
such transaction may be effected on or subsequent to the Effective Date without
any further action by the stockholders or directors of any of the Debtors, the
Debtors in Possession, or the Reorganized Debtors. A list of the subsidiaries
that will be merged or dissolved and the assets to be transferred, will be
included in the Plan Supplement, and may include:
(i) The merger, dissolution or consolidation into New FSS of
certain of the subsidiaries of Loral Corp. other than SS/L and its respective
subsidiaries; and
(ii) The merger, dissolution or consolidation into New SS/L
of all of the subsidiaries of SS/L.
5.3. CANCELLATION AND SURRENDER OF EXISTING SECURITIES AND
AGREEMENTS.
Except (i) as otherwise expressly provided in the Plan of
Reorganization, (ii) with respect to executory contracts or unexpired leases
that have been assumed by the Debtors, (iii) for purposes of evidencing a right
to distributions under the Plan of Reorganization, or (iv) with respect to any
Claim that is reinstated and rendered unimpaired under the Plan of
Reorganization, on the Effective Date, the promissory notes, share certificates,
Ltd. Notes, Orion 10% Notes, Orion Stub Notes, the Indentures and other
instruments evidencing any Claims or Equity Interests shall be deemed
automatically cancelled without further act or action under any applicable
agreement, law, regulation, order or rule and the obligations of the Debtors
under the agreements, indentures, and certificates of designations governing
such Claims and Equity Interests, as the case may be, shall be discharged;
provided, however, that the Ltd. Notes, Orion 10% Notes, Orion Stub Notes and
the Indentures shall continue in effect solely for the purposes of (i) allowing
the noteholders to receive their distributions under the Plan of Reorganization,
(ii) allowing the Indenture Trustee to make the distributions, if any, to be
made on account of the Ltd. Notes, Orion 10% Notes and Orion Stub Notes and
(iii) permitting each Indenture Trustee to assert its Charging Lien against such
distributions for payment of the Indenture Trustee Fees.
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5.4. SECTION 1145 EXEMPTION.
To the maximum extent provided by section 1145 of the Bankruptcy
Code and applicable nonbankruptcy law, the New Loral Common Stock and the New
FSS Notes will be exempt from registration under the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
5.5. HART-SCOTT-RODINO COMPLIANCE.
Any shares of New Loral Common Stock to be distributed under the
Plan of Reorganization to any entity required to file a Premerger Notification
and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, shall not be distributed until the notification and waiting periods
applicable under such Act to such entity shall have expired or been terminated.
5.6. DEBTOR INTERCOMPANY CLAIMS.
All Debtor Intercompany Claims shall be reviewed by the Debtors, in
consultation with the Creditors' Committee, and the Reorganized Debtors and
adjusted, continued, or discharged by the Debtors, with the consent of the
Creditors' Committee, or the Reorganized Debtors, in their sole discretion. Any
such transaction may be effected on or subsequent to the Effective Date without
any further action by the stockholders or directors of any of the Debtors, the
Debtors in Possession, or the Reorganized Debtors.
5.7. NON-DEBTOR INTERCOMPANY CLAIMS.
All Non-Debtor Intercompany Claims shall be reviewed by the Debtors,
in consultation with the Creditors' Committee, and the Reorganized Debtors and
adjusted, continued, or discharged by the Debtors, with the consent of the
Creditors' Committee, or the Reorganized Debtors, in their sole discretion. Any
such transaction may be effected on or subsequent to the Effective Date without
any further action by the stockholders or directors of any of the Debtors, the
Debtors in Possession, or the Reorganized Debtors.
SECTION 6. VOTING AND DISTRIBUTIONS
6.1. VOTING OF CLAIMS.
Each holder of an Allowed Claim in an impaired Class of Claims that
is entitled to vote on the Plan of Reorganization pursuant to Section 3 of the
Plan of Reorganization shall be entitled to vote separately to accept or reject
the Plan of Reorganization as provided in such order as is entered by the
Bankruptcy Court establishing procedures with respect to the solicitation and
tabulation of votes to accept or reject the Plan of Reorganization, or any other
order or orders of the Bankruptcy Court.
6.2. NONCONSENSUAL CONFIRMATION.
If any impaired class of Claims entitled to vote shall not accept
the Plan of Reorganization by the requisite statutory majority provided in
section 1126(c) of the Bankruptcy Code, the Debtors reserve the right to
undertake to have the Bankruptcy Court confirm the Plan of Reorganization under
section 1129(b) of the Bankruptcy Code. The Debtors intend to undertake to have
the Bankruptcy Court confirm the Plan of Reorganization under section 1129(b) of
the Bankruptcy Code with respect to Class 6, Class 7 and Class 8.
16
6.3. DISTRIBUTION RECORD DATE.
New Loral and any party responsible for making distributions
pursuant to Section 6.6 of the Plan of Reorganization shall have no obligation
to recognize any transfer of any Claims occurring after the Distribution Record
Date. New Loral and any party responsible for making distributions pursuant to
Section 6.6 of the Plan of Reorganization shall instead be authorized and
entitled to recognize and deal for all purposes under the Plan of Reorganization
with only those record holders stated on the Claims register as of the close of
business on the Distribution Record Date.
6.4. DATE OF DISTRIBUTIONS.
Unless otherwise provided herein, any distributions and deliveries
to be made hereunder shall occur on the Effective Date or as soon thereafter as
is practicable. In the event that any payment or act under the Plan of
Reorganization is required to be made or performed on a date that is not a
Business Day, then the making of such payment or the performance of such act may
be completed on or as soon as reasonably practicable after the next succeeding
Business Day, but shall be deemed to have been completed as of the required
date.
6.5. DISBURSING AGENT.
All distributions under the Plan of Reorganization shall be made by
New Loral or such other entity designated by New Loral on or after the Effective
Date or under Section 6.6 of the Plan of Reorganization.
6.6. DELIVERY OF DISTRIBUTIONS.
(a) General. Subject to Bankruptcy Rule 9010, all distributions to
holders of Allowed Claims shall be made at the address of the holder thereof as
set forth on the Schedules filed with the Bankruptcy Court or on the books and
records of the Debtors or their agents or in a letter of transmittal unless the
Debtors have been notified in writing of a change of address, including, without
limitation, by the filing of a proof of claim by such holder that contains an
address for such holder different from the address reflected on such Schedules
for such holder.
New Loral shall deliver all distributions in respect of Allowed Ltd.
Note Claims, Allowed Orion 10% Note Claims and Allowed Orion Stub Note Claims to
the respective Indenture Trustee under the Ltd. Notes, the Orion 10% Notes and
the Orion Stub Notes. Upon delivery of the foregoing distributions to the
Indenture Trustee, New Loral shall be released of all liability and obligations
with respect to such distributions. The distributions to be made under the Plan
of Reorganization to holders of Allowed Note Claims shall be made to the
respective Indenture Trustee, which, subject to the right of such Indenture
Trustee to assert its Charging Lien against such distributions, shall transmit
the distributions to the holders of such Allowed Note Claims.
(b) Withholding and Reporting Requirements. In connection with the
Plan and all instruments issued in connection therewith and distributed thereon,
any party issuing any instrument or making any distribution under the Plan,
including any party described in Section 6.5 above, shall comply with all
applicable withholding and reporting requirements imposed by any federal, state
or local taxing authority, and all distributions under the Plan shall be subject
to any such withholding or reporting requirements. Notwithstanding the above,
each holder of an Allowed Claim that is to receive a distribution under the Plan
shall have the sole and exclusive responsibility for the satisfaction and
payment of any tax obligations imposed by any governmental unit, including
income, withholding and other tax obligations, on account of such distribution.
Any party issuing any instrument or making any
17
distribution under the Plan has the right, but not the obligation, to not make a
distribution until such holder has made arrangements satisfactory to such
issuing or disbursing party for payment of any such tax obligations
(c) JPL Fee and Expense Claim Reserve. On the Effective Date, the
JPL Fee and Expense Claim Reserve will be funded by New Loral in an amount
sufficient to fund all of the fees and expenses of the JPLs and their retained
professionals incurred and unpaid prior to the Effective Date (excluding those
fees and expenses which have been disallowed by the Supreme Court of Bermuda
pursuant to the applicable fee approval procedure and which are not subject to
any ongoing dispute). The entity managing the JPL Fee and Expense Claim Reserve
will release funds to the JPLs immediately upon the production of an order of
the Supreme Court of Bermuda which provides that fees and expenses provided for
by the JPL Fee and Expense Claim Reserve have been allowed under the applicable
fee approval process. After the payment of those JPL Fee and Expense Claims
incurred prior to the Effective Date, any amounts remaining in such reserve
shall be distributed to New Loral.
(d) Post-Effective Date Fees and Expenses of the JPLs. On the
Effective Date, New Loral shall deposit an amount to be agreed upon by the
Debtors, the Creditors' Committee and the JPLs in a bank account in Bermuda
designated by and under the sole control of the JPLs, which account shall be
subject to the exclusive jurisdiction of the Supreme Court of Bermuda for the
payment of the JPLs and their retained professionals' fees and expenses incurred
on or after the Effective Date in the provisional liquidations, in accordance
with the procedures established by the Supreme Court of Bermuda. In the event
that such JPL Fee and Expense Claims in the provisional liquidations are
determined by the Supreme Court of Bermuda to be less than the agreed upon
amount described in the first sentence of this subparagraph, any balance will be
returned to New Loral.
(e) Costs of Liquidation. On the Effective Date, New Loral shall
deposit an amount to be agreed upon by the Debtors, the Creditors' Committee and
the JPLs in a bank account in Bermuda designated by and under the sole control
of the JPLs, which account shall be subject to the exclusive jurisdiction of the
Supreme Court of Bermuda for the liquidations of the Bermudian Debtors (the
"Bermuda Liquidation Fund"). The Bermuda Liquidation Fund will, subject to the
provisions of Section 6.6(f) of the Plan of Reorganization, be used to fund the
liquidation of the Bermudian Debtors; provided, however, that any provisional
liquidators and, subsequently, liquidators of the Bermudian Debtors will be
required to carry out only their statutory obligations under Bermuda law. In the
event that, following the making of winding up orders in respect of the
Bermudian Debtors, the JPLs do not act as provisional liquidators (and,
subsequently, liquidators) of the Bermudian Debtors, the JPLs shall, upon the
making of the winding up orders, transfer the Bermuda Liquidation Fund to such
other person(s) so acting as provisional liquidators (and, subsequently,
liquidators). Following the conclusion of the liquidations of the Bermudian
Debtors under Bermuda law, any unused fees and expenses in the Bermuda
Liquidation Fund and the Bermuda Contingency Fund shall be distributed to New
Loral.
(f) Bermuda Contingency Fund. Upon the making of any winding up
order in respect of the Bermudian Debtors, the JPLs will transfer from the
Bermuda Account, free and clear of liens, claims, and encumbrances, to any
provisional liquidators an amount to be agreed upon by the Debtors, the
Creditors' Committee and the JPLs on account of any unanticipated fees and
expenses of the liquidations of the Bermudian Debtors (the "Bermuda Contingency
Fund"). In the event that any unforeseen circumstances arise which require such
provisional liquidators or liquidators to draw on the Bermuda Contingency Fund,
they shall give New Loral at least seven (7) days prior notice of the purpose of
the draw, the payee, and the amount of such draw, and New Loral shall have the
option to fund such amount directly in lieu of a draw being made against the
Bermuda Contingency Fund.
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6.7. UNCLAIMED DISTRIBUTIONS.
In the event that any distribution to any holder is returned as
undeliverable, New Loral shall use reasonable efforts to determine the current
address of such holder, but no distribution to such holder shall be made unless
and until New Loral or New FSS, as applicable has determined the then current
address of such holder, at which time such distribution shall be made to such
holder without interest; provided that such distributions shall be deemed
unclaimed property under section 347(b) of the Bankruptcy Code at the expiration
of one year from the Effective Date. After such date, all unclaimed property or
interest in property shall revert to New Loral or New FSS, as applicable, and
the Claim of any other holder to such property or interest in property shall be
discharged and forever barred.
6.8. MANNER OF PAYMENT UNDER PLAN OF REORGANIZATION.
(a) Except as otherwise provided in Section 4.4 of the Plan of
Reorganization, all distributions of New Loral Common Stock and Cash to the
creditors of the Debtors under the Plan of Reorganization, as applicable, shall
be made by New Loral on behalf of the Reorganized Debtors. Where the applicable
Reorganized Debtor is a subsidiary of New Loral, New Loral shall make a capital
contribution, either directly or indirectly, to the applicable Reorganized
Debtor of an amount of New Loral Common Stock, or Cash to be distributed to the
creditors of such Debtor, but only at such time as, and to the extent, the
amounts are actually distributed to holders of Allowed Claims. Any distributions
that revert to New Loral or are otherwise canceled (such as to the extent any
distributions have not been claimed within one year or are forfeited pursuant to
Section 6.7 of the Plan of Reorganization) shall revest solely in New Loral and
any applicable Reorganized Debtor (other than New Loral) shall not have (nor
shall it be considered to ever have had) any ownership interest in the amounts
distributed.
(b) At the option of the Debtors, any Cash payment to be made
hereunder may be made by a check or wire transfer.
(c) All distributions of New FSS Notes shall be made by New FSS.
6.9. FRACTIONAL SHARES.
No fractional shares of New Loral Common Stock shall be distributed
under the Plan of Reorganization. When any distribution pursuant to the Plan of
Reorganization on account of an Allowed Claim would otherwise result in the
issuance of a number of shares of New Loral Common Stock that is not a whole
number, the actual distribution of shares of New Loral Common Stock shall be
rounded as follows: (i) fractions of one-half (1/2) or greater shall be rounded
to the next higher whole number and (ii) fractions of less than one-half (1/2)
shall be rounded to the next lower whole number with no further payment or other
distribution therefor. The total number of authorized shares of New Loral Common
Stock to be distributed to holders of Allowed Claims shall be adjusted as
necessary to account for the rounding provided in this Section 6.9.
6.10. FRACTIONAL NOTES.
The New FSS Notes shall not be distributed in denominations of less
than one thousand ($1,000) dollars. When any distribution pursuant to the Plan
on account of an Allowed Claim would otherwise result in the issuance of an
amount of the New FSS Notes that is not a multiple of one thousand (1,000), the
actual distribution of the New FSS Notes shall be rounded as follows: (i)
denominations of five hundred ($500) dollars or greater than shall be rounded up
to one thousand ($1,000) dollars; and (ii) denominations less than five hundred
($500) dollars shall be rounded down to zero with no further
19
payment therefor. The total amount of the New FSS Notes to be distributed to
holders of Allowed Claims shall be adjusted as necessary to account for the
rounding provided in this section.
6.11. REGISTRATION OF NEW LORAL COMMON STOCK.
Each Registration Rights Holder shall have the right to become a
party to the Registration Rights Agreement on the Effective Date. The
Registration Rights Agreement shall contain customary terms and conditions and
shall be reasonably acceptable to the Creditors' Committee.
6.12. SETOFFS.
The Debtors may, but shall not be required to, setoff against any
Claim (for purposes of determining the Allowed amount of such Claim on which
distribution shall be made) any Claims of any nature whatsoever that the Debtors
may have against the holder of such Claim, but neither the failure to do so nor
the allowance of any Claim hereunder shall constitute a waiver or release by the
Debtors of any such Claim the Debtors may have against the holder of such Claim.
6.13. ALLOCATION OF PLAN DISTRIBUTIONS BETWEEN PRINCIPAL AND
INTEREST.
To the extent that any Allowed Claim entitled to a distribution
under the Plan of Reorganization consists of indebtedness and accrued but unpaid
interest thereon, such distribution shall be allocated first to the principal
amount of the Claim (as determined for federal income tax purposes) and then, to
the extent the consideration exceeds the principal amount of the Claim, to
accrued but unpaid interest.
SECTION 7. PROCEDURES FOR DISPUTED CLAIMS
7.1. OBJECTIONS TO CLAIMS.
The Reorganized Debtors shall be entitled to object to all Claims.
Any objections to Claims shall be served and filed on or before the later of (i)
one hundred twenty (120) days after the Effective Date, as such time may be
extended by order of the Bankruptcy Court and (ii) such later date as may be
fixed by the Bankruptcy Court, whether fixed before or after the date specified
in clause (i) above. All objections shall be litigated to Final Order.
7.2. PAYMENTS AND DISTRIBUTIONS WITH RESPECT TO DISPUTED CLAIMS.
Notwithstanding any other provision in the Plan of Reorganization,
if any portion of a Claim is disputed, no payment or distribution provided
hereunder shall be made on account of any portion of such Disputed Claim unless
and until such Disputed Claim becomes an Allowed Claim.
7.3. TREATMENT AND DISTRIBUTIONS AFTER ALLOWANCE.
After such time as a Disputed Claim becomes, in whole or in part, an
Allowed Claim, the holder thereof shall be distributed the distributions, if
any, to which such holder is then entitled as provided in the Plan of
Reorganization. Such distributions shall be made as soon as practicable after
(i) the date that the order or judgment of the Bankruptcy Court allowing such
Disputed Claim (or portion thereof) becomes a Final Order, (ii) the date on
which any objection to such Disputed Claim has been withdrawn in accordance with
Section 7.1 of the Plan of Reorganization, or (iii) the date on which such
Disputed Claim has been settled, compromised or otherwise resolved in accordance
with Section 7.1 of the Plan of Reorganization, but in no event more than thirty
(30) days thereafter.
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7.4. RESOLUTION OF ADMINISTRATIVE EXPENSE CLAIMS AND CLAIMS.
On and after the Effective Date, the Reorganized Debtors shall have
the authority to compromise, settle, otherwise resolve, or withdraw any
objections to Administrative Expense Claims and Claims and to compromise,
settle, or otherwise resolve any disputed Administrative Expense Claims and
disputed Claims without approval of the Bankruptcy Court, other than with
respect to Administrative Expense Claims relating to compensation of
professionals.
7.5. ESTIMATION OF CLAIMS.
The Debtors, in consultation with the Creditors' Committee, and the
Reorganized Debtors may at any time request that the Bankruptcy Court estimate
any Contingent Claim, Unliquidated Claim, or Disputed Claim pursuant to section
502(c) of the Bankruptcy Code regardless of whether any of the Debtors or the
Reorganized Debtors previously objected to such Claim or whether the Bankruptcy
Court has ruled on any such objection, and the Bankruptcy Court will retain
jurisdiction to estimate any Claim at any time during litigation concerning any
objection to any Claim, including, without limitation, during the pendency of
any appeal relating to any such objection. In the event that the Bankruptcy
Court estimates any Contingent Claim, Unliquidated Claim, or Disputed Claim, the
amount so estimated shall constitute either the Allowed amount of such Claim or
a maximum limitation on such Claim, as determined by the Bankruptcy Court. If
the estimated amount constitutes a maximum limitation on the amount of such
Claim, the Debtors, in consultation with the Creditors' Committee, or the
Reorganized Debtors may pursue supplementary proceedings to object to the
allowance of such Claim. All of the aforementioned objection, estimation and
resolution procedures are intended to be cumulative and not exclusive of one
another. Claims may be estimated and subsequently compromised, settled,
withdrawn, or resolved by any mechanism approved by the Bankruptcy Court.
7.6. INTEREST.
To the extent that a Disputed Claim becomes an Allowed Claim after
the Effective Date, the holder of such Claim shall not be entitled to any
interest thereon.
SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1. ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES.
Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code,
all executory contracts and unexpired leases that exist between the Debtors and
any person or entity shall be deemed rejected by the Debtors as of the Effective
Date, except for any executory contract or unexpired lease (i) that has been
assumed pursuant to an order of the Bankruptcy Court entered prior to the
Effective Date, (ii) as to which a motion for approval of the assumption of such
executory contract or unexpired lease has been filed and served prior to the
Confirmation Date, or (iii) that is specifically designated as a contract or
lease to be assumed on Schedule 8.1, which Schedule shall be contained in the
Plan Supplement; provided, however, that the Debtors, after consultation with
the Creditors' Committee, reserve the right, on or prior to the Confirmation
Date, to amend Schedule 8.1 to delete any executory contract or unexpired lease
therefrom or add any executory contract or unexpired lease thereto, in which
event such executory contract(s) or unexpired lease(s) shall be deemed to be,
respectively, rejected or assumed as of the Effective Date. The Debtors shall
provide notice of any amendments to Schedule 8.1 to the parties to the executory
contracts and unexpired leases affected thereby and the Creditors' Committee.
The listing of a document on Schedule 8.1 shall not constitute an admission by
the Debtors that such document is an executory contract or an unexpired lease or
that the Debtors have any liability thereunder.
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A non-Debtor party to an executory contract or unexpired lease that
is being rejected hereunder may request that the Debtors assume such contract or
lease by sending written notice to New Loral, which notice shall include a
waiver of any defaults (including any payment defaults) and any right to any
cure payment under such contract or lease. New Loral may, but shall not be
obligated to, assume such contract or lease without further action of the
Bankruptcy Court.
8.2. APPROVAL OF ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES.
Entry of the Confirmation Order shall, subject to and upon the
occurrence of the Effective Date, constitute (i) the approval, pursuant to
sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption of the
executory contracts and unexpired leases assumed pursuant to Section 8.1 of the
Plan of Reorganization, (ii) the extension of time, pursuant to section
365(d)(4) of the Bankruptcy Code, within which the Debtors may assume, assume
and assign, or reject the unexpired leases specified in Section 8.1 of the Plan
of Reorganization through the date of entry of an order approving the
assumption, assumption and assignment, or rejection of such unexpired leases and
(iii) the approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy
Code, of the rejection of the executory contracts and unexpired leases rejected
pursuant to Section 8.1 of the Plan of Reorganization.
8.3. INCLUSIVENESS.
Unless otherwise specified on Schedule 8.1, each executory contract
and unexpired lease listed or to be listed on Schedule 8.1 shall include any and
all modifications, amendments, supplements, restatements, or other agreements
made directly or indirectly by any agreement, instrument, or other document that
in any manner affects such executory contract or unexpired lease, without regard
to whether such agreement, instrument or other document is listed on Schedule
8.1.
8.4. CURE OF DEFAULTS.
Except to the extent that different treatment has been agreed to by
the non-debtor party or parties to any executory contract or unexpired lease to
be assumed pursuant to Section 8.1 of the Plan of Reorganization, the Debtors
shall, pursuant to the provisions of sections 1123(a)(5)(G) and 1123(b)(2) of
the Bankruptcy Code and consistent with the requirements of section 365 of the
Bankruptcy Code, within twenty (20) days of the Confirmation Date, file and
serve a pleading with the Bankruptcy Court listing the cure amounts of all
executory contracts or unexpired leases to be assumed. The parties to such
executory contracts or unexpired leases to be assumed by the Debtors shall have
twenty (20) days from service to object to the cure amounts listed by the
Debtors. If there are any objections filed, the Bankruptcy Court shall hold a
hearing. Notwithstanding Section 8.1 of the Plan of Reorganization, the Debtors
shall retain their rights to reject any of their executory contracts or
unexpired leases that are subject to a dispute concerning amounts necessary to
cure any defaults through the Effective Date.
8.5. ASSIGNMENT.
In furtherance of the Plan of Reorganization and in order to
consummate the Restructuring Transactions provided in Section 5.2 of the Plan,
on and after the Effective Date, pursuant to sections 105(a), 363 and 365 of the
Bankruptcy Code, the Debtors and Reorganized Debtors may transfer and assign any
of their executory contracts or unexpired leases to any of their affiliates
without any further act, authority or notice. Any executory contract or
unexpired lease so transferred and assigned shall remain in full force and
effect for the benefit of the transferee or assignee in accordance with its
terms, notwithstanding any provision in such executory contract or unexpired
lease (including those of the type described in sections 365(b)(2) of the
Bankruptcy Code) that prohibits, restricts, or conditions such
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transfer or assignment. Any provision that prohibits, restricts or conditions
the assignment or transfer of any such executory contract or unexpired lease or
that terminates or modifies such executory contract or unexpired lease or allows
the counterparty to such executory contract or unexpired lease to terminate,
modify, recapture, impose any penalty, condition renewal or extension, or modify
any term or condition upon any such transfer and assignment constitutes an
unenforceable anti-assignment provision and is void and of no force or effect.
8.6. REJECTION CLAIMS.
In the event that the rejection of an executory contract or
unexpired lease by the Debtors pursuant to the Plan of Reorganization results in
damages to the other party or parties to such contract or lease, a Claim for
such damages, if not heretofore evidenced by a filed proof of claim, shall be
forever barred and shall not be enforceable against the Debtors or the
Reorganized Debtors, or their properties or interests in property as agents,
successors, or assigns, unless a proof of claim is filed with the Bankruptcy
Court and served upon the attorneys for the Debtors on or before the date that
is thirty (30) days after the later of (i) the Confirmation Date, (ii) notice of
modification to Schedule 8.1, or (iii) such later rejection date that occurs as
a result of a dispute concerning amounts necessary to cure any defaults.
8.7. SURVIVAL OF THE DEBTORS' CORPORATE INDEMNITIES.
Notwithstanding anything contained in the Plan of Reorganization to
the contrary, unless specifically rejected by order of the Bankruptcy Court, any
and all obligations of the Debtors to indemnify and reimburse persons who are or
were directors, officers, agents and/or employees of the Debtors on the
Commencement Date or any time thereafter against and for any obligations
(including, without limitation, fees and expenses incurred by any of the members
of the Board of Directors of any of the Debtors or the members thereof in
connection with the Reorganization Cases) pursuant to articles of incorporation,
codes of regulations, bylaws, applicable state law or specific agreement, or any
combination of the foregoing, shall survive the confirmation of the Plan of
Reorganization, shall remain unaffected thereby and in full force and effect as
obligations of the Reorganized Debtors, and shall not be discharged in
accordance with section 1141 of the Bankruptcy Code or otherwise, irrespective
of whether indemnification or reimbursement is owed in connection with an event
occurring before, on, or after the Commencement Date. In furtherance of the
foregoing, the Reorganized Debtors shall maintain insurance for the benefit of
such directors, officers, agents and/or employees at levels no less favorable
than those existing as of the date of entry of the Confirmation Order for a
period of no less than three years following the Effective Date.
8.8. INSURANCE POLICIES.
Notwithstanding anything contained in the Plan of Reorganization to
the contrary, unless specifically rejected by order of the Bankruptcy Court, all
of the Debtors' insurance policies and any agreements, documents or instruments
relating thereto, are treated as executory contracts under the Plan of
Reorganization and will be assumed pursuant to the Plan of Reorganization.
Nothing contained in this Section 8.8 shall constitute or be deemed a waiver of
any cause of action that the Debtors may hold against any entity, including,
without limitation, the insurer under any of the Debtors' policies of insurance.
8.9. COMPENSATION AND BENEFIT PROGRAMS.
Notwithstanding anything contained in the Plan of Reorganization to
the contrary, unless specifically rejected by order of the Bankruptcy Court, all
employment and severance policies and workers' compensation programs, and all
compensation and benefit plans, policies and programs of the
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Debtors applicable to their present and former employees, officers and
directors, including, without express or implied limitation, all savings plans,
retirement plans, supplemental retirement plans (including the Supplemental
Executive Retirement Plan, as amended pursuant to the SERP Amendment), health
care plans, disability plans, and life, accidental death, and dismemberment
insurance plans, shall be deemed to be, and shall be treated as though they are,
executory contracts that are deemed assumed under the Plan of Reorganization,
and the Debtors' obligations under such plans, policies, and programs shall be
deemed assumed pursuant to section 365(a) of the Bankruptcy Code, shall survive
confirmation of the Plan of Reorganization, shall remain unaffected thereby, and
shall not be discharged in accordance with section 1141 of the Bankruptcy Code.
Any defaults existing under any of such plans, policies, and programs shall be
cured promptly after they become known by the Reorganized Debtors. All severance
benefits shall be treated as set forth in the Plan Supplement. The assumed plans
shall be subject to modification in accordance with the terms thereof at the
discretion of the New Loral Board.
8.10. RETIREE BENEFITS.
On and after the Effective Date, pursuant to section 1129(a)(13) of
the Bankruptcy Code, the Reorganized Debtors shall continue to pay all retiree
benefits of the Debtors (within the meaning of and subject to section 1114 of
the Bankruptcy Code) for the duration of the period for which the Debtors had
obligated themselves to provide such benefits and subject to the right of the
Reorganized Debtors to modify or terminate such retiree benefits in accordance
with the terms thereof.
SECTION 9. PROVISIONS REGARDING CORPORATE GOVERNANCE OF THE REORGANIZED
DEBTORS
9.1. GENERAL.
On the Effective Date, the management, control, and operation of the
Reorganized Debtors shall become the general responsibility of the New Loral
Board and the Reorganized Subsidiary Debtors' Boards, as applicable.
9.2. DIRECTORS AND OFFICERS OF THE REORGANIZED DEBTORS.
(a) New Loral Board. The members of the initial New Loral Board
shall be disclosed not later than ten (10) days prior to the Confirmation
Hearing. Each of the members of such initial New Loral Board shall serve in
accordance with applicable nonbankruptcy law and the New Loral Certificate of
Incorporation and New Loral Bylaws, as the same may be amended from time to
time. The number of directors on the New Loral Board shall be determined by the
Creditors' Committee. A majority of the directors shall be "independent" (within
the meaning of the rules of the Securities and Exchange Commission and Nasdaq or
other national securities exchange, as applicable). The New Loral Board shall
consist of the current Chief Executive Officer of the Debtors, two designees
appointed by such Chief Executive Officer (both of whom will be "independent"),
the Vice Chairman of New Loral, and the designees appointed by the Creditors'
Committee. The Creditors' Committee's designees (which shall not include the
Chief Executive Officer, the Chief Executive Officer's designees and the Vice
Chairman) will comprise a majority of the New Loral Board.
(b) Reorganized Debtors' Boards. The initial Reorganized
Subsidiary Debtors' Boards shall be disclosed not later than ten (10) days prior
to the Confirmation Hearing. Each of the members of such initial Reorganized
Subsidiary Debtors' Boards shall serve in accordance with applicable
nonbankruptcy law and the Reorganized Subsidiary Debtors' Certificates of
Incorporation and Reorganized Subsidiary Debtors' Bylaws, as the same may be
amended from time to time.
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(c) Officers. Effective as of the Effective Date, New Loral shall
enter into the New Loral Employment Contracts. The officers of the Reorganized
Debtors, including New Loral, shall be disclosed not later than ten (10) days
prior to the Confirmation Hearing. Each of the officers shall serve in
accordance with applicable nonbankruptcy law, any applicable employment
agreement with New Loral, the New Loral Certificate of Incorporation or the
Reorganized Subsidiary Debtors' Certificates of Incorporation, as applicable, or
the New Loral Bylaws and Reorganized Subsidiary Debtors' Bylaws, as applicable,
as the same may be amended from time to time.
9.3. CERTIFICATES OF INCORPORATION AND BYLAWS.
The New Loral Certificate of Incorporation, the New Loral Bylaws,
the stock certificates of New Loral, the Reorganized Subsidiary Debtors'
Certificates of Incorporation, the Reorganized Subsidiary Debtors' Bylaws, and
the stock certificates of the Reorganized Debtors shall contain provisions
necessary (i) to prohibit the issuance of nonvoting equity securities as
required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such certificates of incorporation and bylaws as permitted by
applicable law, (ii) unless the Debtors and the Creditors' Committee deem it
unnecessary or inadvisable, to impose restrictions on the direct or indirect
transferability of the New Loral Common Stock such that (A) no person or
"entity" may acquire or accumulate 4.75% or more (as determined under tax law
principles governing the application of section 382 of the Tax Code) of the New
Loral Common Stock and (B) no person or entity owning directly or indirectly (as
determined under such tax law principles) on the Effective Date, after giving
effect to the Plan of Reorganization, 4.75% or more of the New Loral Common
Stock may acquire additional shares New Loral Common Stock, subject to certain
exceptions and limitations (including, without limitation, limited duration of
restrictions as described below, the right of the New Loral Board, as
applicable, to waive such restrictions in its reasonable discretion, and
allowance for certain acquisitions without the need for prior Board of Directors
approval, including, without limitation, qualified tender offers for all of New
Loral's stock), (iii) to impose the requirement that any "stock split" or
"reverse stock split" within one (1) year after the Effective Date be approved
by at least ninety-five percent (95%) of the holders of New Loral Common Stock,
as applicable, then outstanding and (iv) to effectuate the provisions of the
Plan of Reorganization. All restrictions on the transferability of the New Loral
Common Stock described under clause (ii) above shall expire on the earlier of
the second (2nd) anniversary of the Effective Date and the date on which the New
Loral Board, as applicable, in good faith determines that, (A) the requirements
under section 382(l)(5) of the Tax Code will not be satisfied with respect to
the ownership change occurring directly as a result of the consummation of the
Plan of Reorganization or (B) treatment under section 382(l)(5) of the Tax Code
is not in the best interests of New Loral, or its stockholders, as the case may
be. New Loral shall use good faith efforts to make the determination of whether
a reasonable basis exists for taking the position that the requirements of
section 382(l)(5) of the Tax Code have been satisfied, at the earliest date
following the Effective Date that adequate information regarding the ownership
of New Loral is reasonably available, and from time to time thereafter as
additional information or developments relevant to this determination are
reasonably available or occur.
9.4. AUTHORIZATION AND ISSUANCE OF NEW SECURITIES.
The issuance of the following securities by New Loral and New FSS
are hereby authorized without further act or action under applicable law,
regulation, order, or rule:
(a) the New Loral Common Stock,
(b) the New FSS Notes, and
(c) the Options.
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9.5. LISTING OF NEW LORAL COMMON STOCK.
New Loral shall use commercially reasonable efforts to cause the New
Loral Common Stock to be listed on the national market system of Nasdaq or such
other national securities exchange for which it may qualify.
9.6. NEW MANAGEMENT STOCK PLAN.
The New Management Stock Plan shall be and shall be deemed to be
adopted and effective as of the Effective Date. The solicitation of votes on the
Plan of Reorganization shall include and be deemed to be a solicitation for
approval of the New Management Stock Plan by the holders of the New Loral Common
Stock. Entry of the Confirmation Order shall constitute such approval.
SECTION 10. EFFECT OF CONFIRMATION
10.1. VESTING OF ASSETS.
Upon the Effective Date, pursuant to section 1141(b) and (c) of the
Bankruptcy Code, all property of the Debtors shall vest in each of the
Reorganized Debtors free and clear of all Claims, Liens, encumbrances, charges,
and other interests, except as provided in the Plan of Reorganization. The
Reorganized Debtors may operate their businesses and may use, acquire, and
dispose of property free of any restrictions of the Bankruptcy Code or the
Bankruptcy Rules and in all respects as if there were no pending case under any
chapter or provision of the Bankruptcy Code.
10.2. DISCHARGE OF CLAIMS AND TERMINATION OF EQUITY INTERESTS.
The rights afforded in the Plan of Reorganization and the payments
and distributions to be made hereunder shall discharge all existing debts and
Claims, and, except as provided in the Plan of Reorganization with regard to the
Other Equity Interests held by the Debtors or the Non-Debtors, shall terminate
all Equity Interests, of any kind, nature, or description whatsoever against or
in the Debtors or any of their assets or properties to the fullest extent
permitted by section 1141 of the Bankruptcy Code. Except as provided in the Plan
of Reorganization, upon the Effective Date, all existing Claims against the
Debtors and Equity Interests in the Debtors shall be, and shall be deemed to be,
discharged and terminated, and all holders of Claims and Equity Interests shall
be precluded and enjoined from asserting against the Reorganized Debtors, their
successors or assignees, or any of their assets or properties, any other or
further Claim or Equity Interest based upon any act or omission, transaction, or
other activity of any kind or nature that occurred prior to the Effective Date,
whether or not such holder has filed a proof of Claim or proof of Equity
Interest, and whether or not the facts or legal bases therefore were known or
existed prior to the Effective Date.
10.3. DISCHARGE OF DEBTORS.
Upon the Effective Date and in consideration of the distributions to
be made hereunder, except as otherwise expressly provided herein, each holder
(as well as any trustees and agents on behalf of each holder) of a Claim or
Equity Interest and any affiliate of such holder shall be deemed to have forever
waived, released and discharged the Debtors, to the fullest extent permitted by
section 1141 of the Bankruptcy Code, of and from any and all Claims, Equity
Interests, rights, and liabilities that arose prior to the Effective Date. Upon
the Effective Date, all such persons shall be forever precluded and enjoined,
pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting
any such discharged Claim against or terminated Equity Interest in the Debtors.
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10.4. INJUNCTION.
Except as otherwise expressly provided in the Plan of
Reorganization, all persons or entities who have held, hold or may hold Claims
or Equity Interests are permanently enjoined, from and after the Effective Date,
from (i) commencing or continuing in any manner any action or other proceeding
of any kind with respect to any such Claim or Equity Interest against the
Debtors or Reorganized Debtors, (ii) the enforcement, attachment, collection or
recovery by any manner or means of any judgment, award, decree or order against
the Debtors or Reorganized Debtors, (iii) creating, perfecting, or enforcing any
encumbrance of any kind against the Debtors or Reorganized Debtors or against
the property or interests in property of the Debtors or Reorganized Debtors, or
(iv) asserting any right of setoff, subrogation or recoupment of any kind
against any obligation due from the Debtors or Reorganized Debtors or against
the property or interests in property of the Debtors or Reorganized Debtors,
with respect to any such Claim or Equity Interest. Such injunction shall extend
to any successors of the Debtors and Reorganized Debtors and their respective
properties and interest in properties.
10.5. TERM OF INJUNCTIONS OR STAYS.
Unless otherwise provided, all injunctions or stays arising under or
entered during the Reorganization Cases under section 105 or 362 of the
Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall
remain in full force and effect until the later of the Effective Date and the
date indicated in the order providing for such injunction or stay.
10.6. INJUNCTION AGAINST INTERFERENCE WITH PLAN OF REORGANIZATION.
Upon the entry of the Confirmation Order, all holders of Claims and
Equity Interests and other parties in interest, along with their respective
present or former employees, agents, officers, directors, principals and
affiliates shall be enjoined from taking any actions to interfere with the
implementation or consummation of the Plan of Reorganization.
10.7. EXCULPATION.
Notwithstanding anything herein to the contrary, as of the Effective
Date, none of (i) the Debtors and the Debtors' officers, directors, and
employees, (ii) the Creditors' Committee and any subcommittee thereof, (iii) the
Agent, (iv) the Indenture Trustees, (v) the JPLs, (vi) the accountants,
financial advisors, investment bankers, and attorneys for the Debtors and (vii)
the directors, officers, partners, members, agents, representatives,
accountants, financial advisors, investment bankers, or attorneys for any of the
persons or entities described in (ii), (iii), (iv) and (v) of this Section 10.7
(but solely in their capacities as such) shall have or incur any liability for
any claim, cause of action or other assertion of liability for any act taken or
omitted to be taken since the Commencement Date in connection with, or arising
out of, the Reorganization Cases, the formulation, dissemination, confirmation,
consummation, or administration of the Plan of Reorganization, property to be
distributed under the Plan of Reorganization, or any other act or omission in
connection with the Reorganization Cases, the provisional liquidation of the
Bermudian Debtors, the Plan of Reorganization, the Disclosure Statement or any
contract, instrument, document or other agreement related thereto; provided,
however, that the foregoing shall not affect the liability of any person that
otherwise would result from any such act or omission to the extent such act or
omission is determined by a Final Order to have constituted willful misconduct
or gross negligence.
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10.8. RELEASES OF REPRESENTATIVES.
Effective as of the Confirmation Date but subject to the occurrence
of the Effective Date, and in consideration of: (a) the services provided by the
present and former directors, officers, employees, affiliates, agents, financial
advisors, attorneys, and representatives of the Debtors to the Debtors who acted
in such capacities after the Commencement Date; (b) the services of the
Creditors' Committee; (c) the services of the Agent; (d) the services of each
Indenture Trustee, and (e) the services of the JPLs, and their respective
professionals in connection with the Reorganization Cases and the provisional
liquidations of the Bermudian Debtors, (x) the Debtors and the Reorganized
Debtors; (y) each holder of a Claim or Equity Interest that votes to accept the
Plan of Reorganization (or is deemed to accept the Plan of Reorganization); and
(z) to the fullest extent permissible under applicable law, as such law may be
extended or integrated after the Effective Date, each holder of a Claim or
Equity Interest that does not vote to accept the Plan of Reorganization, shall
release unconditionally and forever each present or former director, officer,
employee, agent, financial advisor, attorney and representative of the Debtors
who acted in such capacity after the Commencement Date, the Creditors'
Committee, each member of the Creditors' Committee, the Agent, the Indenture
Trustees, the JPLs, and each of their respective members, officers, directors,
agents, financial advisors, attorneys, employees, equity holders, parent
corporations, subsidiaries, partners, affiliates and representatives from any
and all causes of action whatsoever in connection with, related to, or arising
out of the Reorganization Cases, the pursuit of confirmation of the Plan of
Reorganization, the consummation thereof, the administration thereof, or the
property to be distributed thereunder, and the provisional liquidation of the
Bermudian Debtors; provided, that the foregoing shall not operate as a waiver of
or release from any causes of action arising out of the willful misconduct or
gross negligence of any such person or entity.
10.9. AVOIDANCE ACTIONS.
From and after the Effective Date, the Reorganized Debtors shall
have the right to prosecute any avoidance or equitable subordination or recovery
actions under sections 105, 502(d), 510, 542 through 551, and 553 of the
Bankruptcy Code that belong to the Debtors or Debtors in Possession.
10.10. RETENTION OF CAUSES OF ACTION/RESERVATION OF RIGHTS.
(a) Except as provided in Section 10.8 hereof, nothing contained
in the Plan of Reorganization or the Confirmation Order shall be deemed to be a
waiver or the relinquishment of any rights or causes of action that the Debtors
or the Reorganized Debtors may have or which the Reorganized Debtors may choose
to assert on behalf of their respective estates under any provision of the
Bankruptcy Code or any applicable nonbankruptcy law, including, without
limitation, (i) any and all Claims against any person or entity, to the extent
such person or entity asserts a crossclaim, counterclaim, and/or Claim for
setoff which seeks affirmative relief against the Debtors, the Reorganized
Debtors, their officers, directors, or representatives and (ii) the turnover of
any property of the Debtors' estates.
(b) Nothing contained in the Plan of Reorganization or the
Confirmation Order shall be deemed to be a waiver or relinquishment of any
claim, cause of action, right of setoff, or other legal or equitable defense
which the Debtors had immediately prior to the Commencement Date, against or
with respect to any Claim left unimpaired by the Plan of Reorganization. The
Reorganized Debtors shall have, retain, reserve, and be entitled to assert all
such claims, causes of action, rights of setoff, and other legal or equitable
defenses which the Debtors had immediately prior to the Commencement Date fully
as if the Reorganization Cases had not been commenced, and all of the
Reorganized Debtors' legal and equitable rights respecting any Claim left
unimpaired by the Plan of Reorganization may be asserted after the Confirmation
Date to the same extent as if the Reorganization Cases had not been commenced.
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SECTION 11. CONDITIONS PRECEDENT
11.1. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.
The occurrence of the Effective Date of the Plan of Reorganization
is subject to the following conditions precedent:
(a) the Confirmation Order, in form and substance reasonably
satisfactory to the Debtors and the Creditors' Committee, shall have been
entered and shall be in full force and effect and there shall not be a stay or
injunction in effect with respect thereto;
(b) the aggregate amount of Loral General Unsecured Claims and
Orion General Unsecured Claims shall not exceed $250 million (excluding the Ltd.
Guaranty Claims, the Ltd. Note Claims and the Orion Note Claims);
(c) it shall have been determined by the insurance underwriters
that the Telstar 14/Estrela do Sul 1 satellite is a total constructive loss and
substantially all of the proceeds shall have been received by SS/L in an amount
consistent with such determination;
(d) all actions, documents, and agreements necessary to implement
the Plan of Reorganization, including, without limitation, all actions,
documents, and agreements necessary to implement the Restructuring Transactions,
shall have been effected or executed;
(e) the Debtors shall have received all authorizations, consents,
regulatory approvals, rulings, letters, no-action letters, opinions, or
documents that are determined by the Debtors, after consultation with the
Creditors' Committee, to be necessary to implement the Plan of Reorganization
and that are required by law, regulation, or order;
(f) the Reorganized Subsidiary Debtors' Certificates of
Incorporation shall have been filed with the Secretary of State of the State of
Delaware; and
(g) each of the New Loral Certificate of Incorporation, New Loral
Bylaws, Reorganized Subsidiary Debtors' Certificates of Incorporation,
Reorganized Subsidiary Debtors' Bylaws, New Management Stock Plan, New Loral
Employment Contracts, the Registration Rights Agreement and the SERP Amendment,
in form and substance acceptable to the Debtors and the Creditors' Committee,
shall be in full force and effect.
The conditions precedent specified above may be waived in whole or
in part by the Debtors and the Creditors' Committee in their sole discretion.
Any such waiver may be effected at any time, without notice or leave or order of
the Bankruptcy Court, and must be in writing.
11.2. EFFECT OF FAILURE OF CONDITIONS TO EFFECTIVE DATE.
In the event the conditions precedent specified in Section 11.1 have
not been satisfied or waived by 120 days after the Confirmation Date, then (i)
the Confirmation Order shall be vacated, (ii) no distributions under the Plan of
Reorganization shall be made, (iii) the Debtors and all holders of Claims and
Equity Interests shall be restored to the status quo ante as of the day
immediately preceding the Confirmation Date as though the Confirmation Date
never occurred and (iv) all of the Debtors' obligations with respect to the
Claims and Equity Interests shall remain unchanged and nothing contained herein
shall be deemed to constitute a waiver or release of any claims by or against
the Debtors or any
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other entity or to prejudice in any manner the rights of the Debtors, the
Creditors' Committee, or any other entity in any further proceedings involving
the Debtors.
SECTION 12. RETENTION OF JURISDICTION
On and after the Effective Date, the Bankruptcy Court shall retain
jurisdiction over all matters arising in, arising under, and related to the
Reorganization Cases for, among other things, the following purposes:
(a) To hear and determine applications for the assumption or
rejection of executory contracts or unexpired leases and the allowance of Claims
resulting therefrom.
(b) To determine any motion, adversary proceeding, application,
contested matter, and other litigated matter pending on or commenced after the
Confirmation Date.
(c) To ensure that distributions to holders of Allowed Claims are
accomplished as provided herein.
(d) To consider Claims or the allowance, classification, priority,
compromise, estimation, or payment of any Claim, Administrative Expense Claim,
or Equity Interest.
(e) To enter, implement, or enforce such orders as may be
appropriate in the event the Confirmation Order is for any reason stayed,
reversed, revoked, modified, or vacated.
(f) To issue injunctions, enter and implement other orders, and
take such other actions as may be necessary or appropriate to restrain
interference by any person with the consummation, implementation, or enforcement
of the Plan of Reorganization, the Confirmation Order, or any other order of the
Bankruptcy Court.
(g) To hear and determine any application to modify the Plan of
Reorganization in accordance with section 1127 of the Bankruptcy Code, to remedy
any defect or omission or reconcile any inconsistency in the Plan of
Reorganization, the Disclosure Statement, or any order of the Bankruptcy Court,
including the Confirmation Order, in such a manner as may be necessary to carry
out the purposes and effects thereof.
(h) To hear and determine all applications under sections 330,
331, and 503(b) of the Bankruptcy Code for awards of compensation for services
rendered and reimbursement of expenses incurred prior to the Confirmation Date.
(i) To hear and determine disputes arising in connection with the
interpretation, implementation, or enforcement of the Plan of Reorganization,
the Confirmation Order, any transactions or payments contemplated hereby, or any
agreement, instrument, or other document governing or relating to any of the
foregoing.
(j) To take any action and issue such orders as may be necessary
to construe, enforce, implement, execute, and consummate the Plan of
Reorganization or to maintain the integrity of the Plan of Reorganization
following consummation.
(k) To determine such other matters and for such other purposes as
may be provided in the Confirmation Order.
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(l) To hear and determine matters concerning state, local, and
federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy
Code, (including the expedited determination of tax under section 505(b) of the
Bankruptcy Code).
(m) To hear and determine any other matters related to the Plan of
Reorganization and not inconsistent with the Bankruptcy Code and title 28 of the
United States Code.
(n) To determine any other matters that may arise in connection
with or are related to the Plan of Reorganization, the Disclosure Statement, the
Confirmation Order any of the Plan Documents, or any other contract, instrument,
release or other agreement or document related to the Plan of Reorganization,
the Disclosure Statement or the Plan Supplement.
(o) To enter a final decree closing the Reorganization Cases.
(p) To recover all assets of the Debtors and property of the
Debtors' estates, wherever located.
(q) To hear and determine any rights, claims or causes of action
held by or accruing to the Debtors pursuant to the Bankruptcy Code or pursuant
to any federal or state statute or legal theory.
SECTION 13. MISCELLANEOUS PROVISIONS
13.1. EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS.
Each of the officers of New Loral, New FSS, New SS/L and the other
Reorganized Debtors is authorized, in accordance with his or her authority under
the resolutions of the applicable Board of Directors, to execute, deliver, file,
or record such contracts, instruments, releases, indentures, and other
agreements or documents and take such actions as may be necessary or appropriate
to effectuate and further evidence the terms and conditions of the Plan of
Reorganization.
13.2. CORPORATE ACTION.
On the Effective Date, all matters provided for under the Plan of
Reorganization that would otherwise require approval of the stockholders or
directors of one or more of the Debtors or Reorganized Debtors, including,
without limitation, the authorization to issue or cause to be issued the New
Loral Common Stock or the New FSS Notes, the issuance of the New Loral Common
Stock and the New FSS Notes, the New Management Stock Plan, the effectiveness of
the New Loral Certificate of Incorporation and the New Loral Bylaws, the
effectiveness of the Reorganized Subsidiary Debtors' Certificates of
Incorporation and Reorganized Subsidiary Debtors' Bylaws, all Restructuring
Transactions to be effectuated pursuant to the Plan of Reorganization, the
election or appointment, as the case may be, of directors and officers of the
Reorganized Debtors, including New Loral, pursuant to the Plan of Reorganization
and the authorization and approval of the New Loral Employment Contracts, and
the qualification, of each of New Loral, New FSS, and New SS/L as a foreign
corporation wherever the conduct of business by such entities requires such
qualification shall be deemed to have occurred and shall be in effect from and
after the Effective Date pursuant to the applicable general corporation law of
the states in which the Debtors or the Reorganized Debtors are incorporated,
without any requirement of further action by the stockholders or directors of
the Debtors or the Reorganized Debtors. On the Effective Date, or as soon
thereafter as is practicable, the Reorganized Debtors, including New Loral,
shall, if required, file their amended certificates of incorporation with the
Secretary of State of the state in which each such entity is (or will be)
organized, in accordance with the applicable general business law of each such
jurisdiction.
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13.3. COMPLIANCE WITH TAX REQUIREMENTS.
In connection with the Plan of Reorganization, and in accordance
with Section 6.6(b) of the Plan of Reorganization, the Debtors will comply with
all withholding and reporting requirements imposed by federal, state, and local
taxing authorities, and all distributions hereunder shall be subject to such
withholding and reporting requirements.
13.4. EXEMPTION FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance,
transfer, or exchange of notes or equity securities under the Plan of
Reorganization, the creation of any mortgage, deed of trust, or other security
interest, the making or assignment of any lease or sublease, or the making or
delivery of any deed or other instrument of transfer under, in furtherance of,
or in connection with the Plan of Reorganization, including, without limitation,
any merger agreements or agreements of consolidation, deeds, bills of sale, or
assignments executed in connection with any of the transactions contemplated
under the Plan of Reorganization, shall not be subject to any stamp, real estate
transfer, mortgage recording, or other similar tax. All sale transactions
consummated by the Debtors and approved by the Bankruptcy Court on and after the
Commencement Date through and including the Effective Date, including, without
limitation, the transfers effectuated under the Plan of Reorganization, the sale
by the Debtors of owned property pursuant to section 363(b) of the Bankruptcy
Code, and the assumption, assignment, and sale by the Debtors of unexpired
leases of non-residential real property pursuant to section 365(a) of the
Bankruptcy Code, shall be deemed to have been made under, in furtherance of, or
in connection with the Plan of Reorganization and, thus, shall not be subject to
any stamp, real estate transfer, mortgage recording, or other similar tax.
13.5. EXPEDITED TAX DETERMINATION.
The Reorganized Debtors may request an expedited determination of
taxes under section 505(b) of the Bankruptcy Code for all returns filed for, or
on behalf of, the Debtors for any and all taxable periods ending after the
Commencement Date through, and including, the Effective Date.
13.6. PAYMENT OF STATUTORY FEES.
On the Effective Date, and thereafter as may be required, the
Debtors shall pay all fees payable pursuant to section 1930 of chapter 123 of
title 28 of the United States Code.
13.7. DISSOLUTION OF STATUTORY COMMITTEE OF UNSECURED CREDITORS.
Effective 15 days after the Effective Date if no appeal of the
Confirmation Order is then pending, the Creditors' Committee shall dissolve with
respect to the Debtors and its members shall be released and discharged from all
further authority, duties, responsibilities and obligations relating to the
Reorganization Cases; provided, however, that the Creditors' Committee and its
professionals shall be retained with respect to (i) applications filed pursuant
to sections 330 and 331 of the Bankruptcy Code and (ii) motions seeking the
enforcement of the provisions of the Plan of Reorganization and the transactions
contemplated hereunder or the Confirmation Order.
13.8. INDENTURE TRUSTEE AS CLAIM HOLDER.
Consistent with Bankruptcy Rule 3003(c), the Reorganized Debtors
shall recognize a proof of claim filed by any Indenture Trustee in respect of
any Note Claims. Accordingly, any Claim,
32
proof of which is filed by the registered or beneficial holder of a Claim, may
be disallowed as duplicative of the Claim of the applicable Indenture Trustee,
without any further action of the Bankruptcy Court.
13.9. PLAN SUPPLEMENT.
A draft form of the Plan Documents to be entered into as of the
Effective Date and any other appropriate documents shall be contained in the
Plan Supplement and filed with the Clerk of the Bankruptcy Court no later than
ten (10) days prior to the last date by which holders of impaired Claims may
vote to accept or reject the Plan of Reorganization. Upon its filing with the
Bankruptcy Court, the Plan Supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during normal court hours. Documents to be
included in the Plan Supplement will be posted at www.bsillc.com as they become
available, but no later than five (5) days prior to the last date by which votes
to accept or reject the Plan of Reorganization must be received.
13.10. SUBSTANTIAL CONSUMMATION.
On the Effective Date, the Plan of Reorganization shall be deemed to
be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy
Code.
13.11. AMENDMENTS.
(a) Plan of Reorganization Modifications. The Plan of
Reorganization may be amended, modified, or supplemented by the Debtors or the
Reorganized Debtors, subject to the consent of the Creditors' Committee, in the
manner provided for by section 1127 of the Bankruptcy Code or as otherwise
permitted by law without additional disclosure pursuant to section 1125 of the
Bankruptcy Code, except as the Bankruptcy Court may otherwise direct. After the
Confirmation Date, so long as such action does not materially adversely affect
the treatment of holders of Claims or Equity Interests under the Plan of
Reorganization, the Debtors or the Reorganized Debtors, subject to the consent
of the Creditors' Committee, may institute proceedings in the Bankruptcy Court
to remedy any defect or omission or reconcile any inconsistencies in the Plan of
Reorganization or the Confirmation Order, with respect to such matters as may be
necessary to carry out the purposes and effects of the Plan of Reorganization.
(b) Other Amendments. Prior to the Effective Date, the Debtors,
subject to the consent of the Creditors' Committee, may make appropriate
technical adjustments and modifications to the Plan of Reorganization without
further order or approval of the Bankruptcy Court, provided that such technical
adjustments and modifications do not adversely affect in a material way the
treatment of holders of Claims or Equity Interests.
13.12. SECTIONS 1125 AND 1126 OF THE BANKRUPTCY CODE.
As of and subject to the occurrence of the Confirmation Date: (i)
the Debtors shall be deemed to have solicited acceptances of the Plan of
Reorganization in good faith and in compliance with the applicable provisions of
the Bankruptcy Code, including without limitation, section 1125(a) of the
Bankruptcy Code, and any applicable non-bankruptcy law, rule, or regulation
governing the adequacy of disclosure in connection with such solicitation and
(ii) the Debtors, the members of the Creditors' Committee, and each of their
respective affiliates, agents, directors, officers, employees, advisors, and
attorneys shall be deemed to have participated in good faith and in compliance
with the applicable provisions of the Bankruptcy Code in the offer and issuance
of any securities under the Plan of Reorganization, and therefore are not, and
on account of such offer, issuance, and solicitation will not be, liable at any
time for any violation of any applicable law, rule or regulation governing the
solicitation of
33
acceptances or rejections of the Plan of Reorganization or the offer and
issuance of any securities under the Plan of Reorganization.
13.13. REVOCATION OR WITHDRAWAL OF THE PLAN OF REORGANIZATION.
The Debtors reserve the right to revoke or withdraw the Plan of
Reorganization prior to the Effective Date. If the Debtors take such action, the
Plan of Reorganization shall be deemed null and void. In such event, nothing
contained in the Plan of Reorganization shall constitute or be deemed a waiver
or release of any Claims by or against the Debtors or any other person or to
prejudice in any manner the rights of the Debtors or any person in any further
proceedings involving the Debtors.
13.14. SEVERABILITY.
If, prior to the entry of the Confirmation Order, any term or
provision of the Plan of Reorganization is held by the Bankruptcy Court to be
invalid, void, or unenforceable, the Bankruptcy Court, at the request of the
Debtors, after consultation with the Creditors' Committee, shall have the power
to alter and interpret such term or provision to make it valid or enforceable to
the maximum extent practicable, consistent with the original purpose of the term
or provision held to be invalid, void, or unenforceable, and such term or
provision shall then be applicable as altered or interpreted. Notwithstanding
any such holding, alteration, or interpretation, the remainder of the terms and
provisions of the Plan of Reorganization will remain in full force and effect
and will in no way be affected, impaired, or invalidated by such holding,
alteration, or interpretation. The Confirmation Order shall constitute a
judicial determination and shall provide that each term and provision of the
Plan of Reorganization, as it may have been altered or interpreted in accordance
with the foregoing, is valid and enforceable pursuant to its terms.
13.15. GOVERNING LAW.
Except to the extent that the Bankruptcy Code or other federal law
is applicable, or to the extent an Exhibit hereto or a schedule or document in
the Plan Supplement provides otherwise, the rights, duties, and obligations
arising under the Plan of Reorganization shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without giving
effect to the principles of conflict of laws thereof.
13.16. BINDING EFFECT.
The Plan of Reorganization shall be binding upon and inure to the
benefit of the Debtors, the holders of Claims and Equity Interests, and their
respective successors and assigns, including, without limitation, the
Reorganized Debtors.
13.17. EXHIBITS/SCHEDULES.
All exhibits and schedules to the Plan of Reorganization, including
the Plan Supplement, are incorporated into and are a part of the Plan of
Reorganization as if set forth in full herein.
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13.18. NOTICES.
All notices, requests, and demands to or upon the Debtors to be
effective shall be in writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when actually delivered or, in the case of notice by facsimile
transmission, when received and telephonically confirmed, addressed as follows:
Loral Space & Communications Ltd.
c/o Loral SpaceCom Corporation
600 Third Avenue
New York, New York 10016
Attn: Avi Katz, Esq.
Vice President, General Counsel and Secretary
Telephone: (212) 697-1105
Facsimile: (212) 338-5320
- and -
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Stephen Karotkin, Esq.
Lori R. Fife, Esq.
Shai Y. Waisman, Esq.
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
- and -
Akin Gump Strauss Hauer & Feld LLP
590 Madison Avenue, 22nd Floor
New York, New York 10022
Attn: Daniel H. Golden, Esq.
David H. Botter, Esq.
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
13.19. TIME.
In computing any period of time prescribed or allowed by the Plan of
Reorganization, unless otherwise set forth herein or determined by the
Bankruptcy Court, the provisions of Bankruptcy Rule 9006 shall apply.
13.20. SECTION HEADINGS.
The section headings contained in the Plan of Reorganization are for
reference purposes only and shall not affect in any way the meaning or
interpretation of the Plan of Reorganization.
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Dated: August 19, 2004
New York, New York
Respectfully submitted,
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ Richard J. Townsend
-----------------------------------------
Name: Richard J. Townsend
Title: Executive Vice President,
Chief Financial Officer
LORAL SPACECOM CORPORATION
LORAL SPACE & COMMUNICATIONS CORPORATION
LORAL SATELLITE, INC.
SPACE SYSTEMS/LORAL, INC.
LORAL COMMUNICATIONS SERVICES, INC.
LORAL GROUND SERVICES, L.L.C.
LORAL ORION, INC.
LORAL CYBERSTAR GLOBAL SERVICES, INC.
LORAL CYBERSTAR GMBH
LORAL CYBERSTAR JAPAN, INC.
LORAL CYBERSTAR SERVICES, INC.
LORAL CYBERSTAR HOLDINGS, L.L.C.
LORAL CYBERSTAR INTERNATIONAL, INC.
LORAL ASIA PACIFIC SATELLITE (HK) LIMITED
SS/L EXPORT CORPORATION
CYBERSTAR, L.P.
CYBERSTAR, L.L.C.
LORAL SKYNET NETWORK SERVICES, INC.
LORAL LICENSING LTD.
BY: LORAL SPACE & COMMUNICATIONS LTD., as agent and
attorney-in-fact for each of the foregoing entities
By: /s/ Richard J. Townsend
-----------------------------------------
Name: Richard J. Townsend
Title: Executive Vice President,
Chief Financial Officer
36