EXHIBIT 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ) Chapter 11
)
OAKWOOD HOMES CORPORATION, ) Case No. 02-13396 (PJW)
et al.,(1) )
Debtors. ) Jointly Administered
)
)
)
SECOND AMENDED JOINT CONSOLIDATED PLAN OF
REORGANIZATION OF OAKWOOD HOMES CORPORATION AND ITS
AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION
Dated: February 6, 2004
MORRIS, NICHOLS, ARSHT & TUNNELL
Robert J. Dehney (No. 3578)
Derek C. Abbott (No. 3376)
Daniel B. Butz (No. 4227)
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
(302) 658-9200
- and -
RAYBURN COOPER & DURHAM, P.A.
C. Richard Rayburn, Jr.
Albert F. Durham
Patricia B. Edmondson
1200 Carillon, 227 West Trade Street
Charlotte, North Carolina 28202-1675
(704) 334-0891
Co-Counsel for Oakwood Homes Corporation,
et al., Debtors and Debtors In Possession
- ---------------------
(1) The Debtors are the following entities: Oakwood Homes Corporation, New
Dimension Homes, Inc., Dream Street Company, LLC, Oakwood Shared
Services, LLC, HBOS Manufacturing, LP, Oakwood MHD4, LLC, Oakwood
Acceptance Corporation, LLC, Oakwood Mobile Homes, Inc., Suburban Home
Sales, Inc., FSI Financial Services, Inc., Home Service Contract, Inc.,
Tri-State Insurance Agency, Inc., Golden West Leasing, LLC, Crest
Capital, LLC and Preferred Housing Services, LP.
THIS PLAN AND THE DISCLOSURE STATEMENT HAVE NOT BEEN REQUIRED TO BE
PREPARED IN ACCORDANCE WITH FEDERAL OR STATE SECURITIES LAWS OR OTHER APPLICABLE
NONBANKRUPTCY LAW. PERSONS OR ENTITIES TRADING IN OR OTHERWISE PURCHASING,
SELLING OR TRANSFERRING SECURITIES WHETHER DEBT OR EQUITY OF THE DEBTORS SHOULD
EVALUATE THIS PLAN IN LIGHT OF THE PURPOSES FOR WHICH IT WAS PREPARED.
AS TO CONTESTED MATTERS, ADVERSARY PROCEEDINGS AND OTHER ACTUAL,
THREATENED OR POTENTIAL ACTIONS, THIS PLAN AND THE DISCLOSURE STATEMENT SHALL
NOT BE DEEMED OR CONSTRUED AS AN ADMISSION, STIPULATION OR WAIVER, BUT RATHER AS
A STATEMENT MADE IN SETTLEMENT NEGOTIATIONS.
TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW 1
1.1 DEFINITIONS. 1
(1) 1997 BONDS SECURED CLAIM 1
(2) 1997-A GUARANTEE 1
(3) 1997-B GUARANTEE 1
(4) 1997-C GUARANTEE 1
(5) 1997-D GUARANTEE 1
(6) 1998 BONDS SECURED CLAIM 2
(7) 1998-B GUARANTEE 2
(8) 1998-C GUARANTEE 2
(9) 1998-D GUARANTEE 2
(10) 1999-A GUARANTEE 2
(11) 1999-B GUARANTEE 2
(12) 1999-C LIMITED GUARANTEE 2
(13) 1999-C GUARANTEE 2
(14) 1999-D GUARANTEE 2
(15) 1999-E GUARANTEE 2
(16) 2000-A GUARANTEE 2
(17) 2000-B GUARANTEE 2
(18) 2001-B GUARANTEE 2
(19) 2001-C GUARANTEE 2
(20) 2001-D GUARANTEE 2
(21) 2001-E GUARANTEE 3
(22) 2002-A GUARANTEE 3
(23) 2002-B GUARANTEE 3
(24) ADMINISTRATIVE CLAIM 3
(25) ADMINISTRATIVE CLAIM BAR DATE ORDER 3
(26) AFFILIATE DEBTOR(S) 3
(27) ALLOWED CLAIM OR INTEREST 3
(28) ALLOWED [CLASS DESIGNATION] CLAIM OR
INTEREST 4
(29) AMENDED AND RESTATED BYLAWS 4
(30) AMENDED AND RESTATED CERTIFICATES OF
INCORPORATION 4
(31) APPROVAL HEARING 4
(32) ASSETS 4
(33) AUTO SECURED CLAIM 4
(34) AVOIDANCE ACTIONS 4
(35) B-2 REMIC GUARANTEES 4
(36) B-PIECE REMIC CERTIFICATES 5
(37) BALLOT 5
(i)
(38) BALLOT DEADLINE 5
(39) BALLOTING AGENT 5
(40) BANKRUPTCY CODE 5
(41) BANKRUPTCY COURT 5
(42) BANKRUPTCY RULES 5
(43) BAR DATE ORDER 5
(44) BERKSHIRE 5
(45) BID PROCEDURES ORDER 5
(46) BSI 5
(47) BUSINESS DAY 6
(48) BUYER 6
(49) CAROLINA SECURED CLAIM 6
(50) CASH 6
(51) CASH EQUIVALENTS 6
(52) CAUSES OF ACTION 6
(53) CHAPTER 11 CASE 6
(54) CLAIM 6
(55) CLAIMS AGENT 7
(56) CLAIMS/INTERESTS OBJECTION DEADLINE 7
(57) CLASS 7
(58) CONFIRMATION DATE 7
(59) CONFIRMATION HEARING 7
(60) CONFIRMATION ORDER 7
(61) CONVENIENCE CLAIM 7
(62) CONVENIENCE CLASS ELECTION 7
(63) CONVENIENCE CLASS OPT-IN ELECTION 7
(64) CONVENIENCE CLASS OPT-OUT ELECTION 7
(65) CREDITORS' COMMITTEE 8
(66) DEBTOR-HELD INTEREST 8
(67) DEBTOR(S) 8
(68) DIP CLAIM 8
(69) DIP LENDERS 8
(70) DISALLOWED 8
(71) DISCLOSURE STATEMENT 8
(72) DISCLOSURE STATEMENT ORDER 8
(73) DISPUTED AMOUNT 8
(74) DISPUTED CLAIM OR INTEREST 9
(75) DISPUTED CLAIMS RESERVE 9
(76) DISTRIBUTION ADDRESS 9
(77) DISTRIBUTION DATE 9
(78) EFFECTIVE DATE 9
(79) ESTATE 9
(80) ESTIMATION ORDER 9
(81) EXCLUDED ASSETS 10
(82) EXCLUDED SALE DEBTOR ASSETS 10
(83) EXCLUDED SALE TRUST ASSETS 10
(84) EXECUTORY CONTRACT SCHEDULE 10
(ii)
(85) EXIT FACILITY 10
(86) EXIT FACILITY AGREEMENT 10
(87) EXIT FACILITY LENDER 10
(88) FACE AMOUNT 10
(89) FEE CLAIM 10
(90) FEE ORDER 10
(91) FINAL DIP AGREEMENT 11
(92) FINAL DIP ORDER 11
(93) FINAL ORDER 11
(94) FIRST AMERICAN SECURED CLAIM 11
(95) FOOTHILL 11
(96) FOOTHILL SECURED CLAIM 11
(97) FUTURE CLAIM 11
(98) HOLDER 12
(99) IMPAIRED 12
(100) INITIAL DISTRIBUTION DATE 12
(101) INITIAL STAND ALONE TRUST ASSETS 12
(102) INSIDER 12
(103) INTERCOMPANY CLAIM 12
(104) INTEREST 12
(105) INTERESTED PARTY PROFESSIONALS 12
(106) JPMORGAN 13
(107) JUNIOR NOTES 13
(108) JUNIOR NOTES CLAIM 13
(109) JUNIOR NOTES INDENTURE 13
(110) JUNIOR NOTES INDENTURE TRUSTEE 13
(111) LIEN 13
(112) LIQUIDATION TRUST 13
(113) LIQUIDATION TRUST ADVISORY COMMITTEE 13
(114) LIQUIDATION TRUST AGREEMENT 13
(115) LIQUIDATION TRUSTEE 13
(116) LITIGATION CLAIMS 13
(117) NET PROCEEDS 14
(118) NEW COMMON STOCK 14
(119) NEW WARRANTS 14
(120) NON-DEBTOR-HELD INTEREST 14
(121) OAC 14
(122) OAKWOOD 14
(123) OFC 14
(124) OFC AND OIC TAX CLAIMS 14
(125) OIC 14
(126) OLD COMMON STOCK 14
(127) OMI 15
(128) OMI TRUST 1995-B 15
(129) OMI TRUST 1996-A 15
(130) OMI TRUST 1996-B 15
(131) OMI TRUST 1996-C 15
(iii)
(132) OMI TRUST 1997-A 15
(133) OMI TRUST 1997-B 15
(134) OMI TRUST 1997-C 15
(135) OMI TRUST 1997-D 15
(136) OMI TRUST 1998-A 16
(137) OMI TRUST 1998-B 16
(138) OMI TRUST 1998-C 16
(139) OMI TRUST 1998-D 16
(140) OMI TRUST 1999-A 16
(141) OMI TRUST 1999-B 16
(142) OMI TRUST 1999-C 16
(143) OMI TRUST 1999-D 16
(144) OMI TRUST 1999-E 16
(145) OMI TRUST 2000-A 17
(146) OMI TRUST 2000-B 17
(147) OMI TRUST 2000-C 17
(148) OMI TRUST 2000-D 17
(149) OMI TRUST 2001-B 17
(150) OMI TRUST 2001-C 17
(151) OMI TRUST 2001-D 17
(152) OMI TRUST 2001-E 17
(153) OMI TRUST 2002-A 18
(154) OMI TRUST 2002-B 18
(155) OMI TRUST 2002-C 18
(156) OSHC 18
(157) OTHER SECURED AND SETOFF CLAIM 18
(158) OTHER UNSECURED CLAIMS 18
(159) PERSON 18
(160) PETITION DATE 18
(161) PLAN 18
(162) PLAN SUPPLEMENT 18
(163) PNC 18
(164) PREPETITION LOAN AGREEMENT 18
(165) PRIORITY NON-TAX CLAIM 19
(166) PRIORITY TAX CLAIM 19
(167) PROOF OF CLAIM 19
(168) PURCHASE AGREEMENT 19
(169) PURCHASE CONSIDERATION 19
(170) PURCHASED BUSINESS 19
(171) QUARTERLY DISTRIBUTION DATE 19
(172) RATABLE, RATABLY OR RATABLE SHARE 19
(173) RECORD DATE 19
(174) REMIC GUARANTEE CLAIMS 19
(175) REMIC TRUSTEE 19
(176) REMIC TRUSTS 19
(177) REORGANIZED SALE DEBTORS 20
(178) REORGANIZED SALE OKWD 20
(iv)
(179) REORGANIZED SALE DEBTORS CAPITALIZATION
AMOUNT 20
(180) REORGANIZED STAND ALONE DEBTORS 20
(181) REORGANIZED STAND ALONE OAKWOOD 20
(182) RESECURITIZATION NOTE 20
(183) RESECURITIZATION NOTE PUT OPTION 20
(184) RESECURITIZATION TRUST 20
(185) RESECURITIZATION TRUSTEE 21
(186) RESIDUAL REMIC CERTIFICATES 21
(187) SALE OPTION 21
(188) SCHEDULE OF ASSETS AND LIABILITIES 21
(189) SECURED CLAIM 21
(190) SECURED TAX CLAIM 21
(191) SENIOR NOTES 21
(192) SENIOR NOTES CLAIM 21
(193) SENIOR NOTES INDENTURE 21
(194) SENIOR NOTES INDENTURE TRUSTEE 21
(195) SERVICING AGREEMENTS 22
(196) SOLICITATION PROCEDURES ORDER 22
(197) STAND ALONE OPTION 22
(198) STAND ALONE VOTING TRUST 22
(199) STAND ALONE VOTING TRUST AGREEMENT 22
(200) STAND ALONE VOTING TRUSTEE 22
(201) STATEMENT OF FINANCIAL AFFAIRS 22
(202) SUBSERVICING AGREEMENTS 22
(203) THOMAS SECURED CLAIM 22
(204) TRANSFER 22
(205) U.S. BANK SECURED CLAIM 22
(206) U.S. GOVERNMENT OBLIGATIONS 22
(207) UNCLAIMED PROPERTY 23
(208) UNIMPAIRED 23
(209) UNITED STATES TRUSTEE 23
(210) UNSECURED CLAIM 23
(211) WARRANT AGREEMENT 23
(212) X REMIC CERTIFICATES 23
1.2 RULES OF INTERPRETATION, COMPUTATION OF TIME
AND GOVERNING LAW. 23
(a) Rules of Interpretation. 23
(b) Computation of Time. 24
(c) Governing Law. 24
ARTICLE II. METHOD OF CLASSIFICATION OF CLAIMS AND
INTERESTS AND GENERAL PROVISIONS 24
2.1 GENERAL RULES OF CLASSIFICATION. 24
2.2 HOLDERS OF CLAIMS ENTITLED TO VOTE. 25
2.3 ACCEPTANCE BY IMPAIRED CLASSES. 25
2.4 NON-CONSENSUAL CONFIRMATION. 25
(v)
2.5 ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS
AND FEE CLAIMS. 25
2.6 SPECIAL PROVISION REGARDING UNIMPAIRED CLAIMS. 25
2.7 INTENTIONALLY OMITTED. 25
2.8 BAR DATES FOR ADMINISTRATIVE CLAIMS. 25
2.9 BAR DATE FOR FEE CLAIMS. 26
ARTICLE III. UNCLASSIFIED CLAIMS 26
3.1 ADMINISTRATIVE CLAIMS. 26
3.2 PRIORITY TAX CLAIMS. 27
3.3 FEE CLAIMS. 27
3.4 OFC AND OIC TAX CLAIMS. 27
ARTICLE IV. CLASSIFICATION, TREATMENT AND VOTING OF
CLAIMS AND INTERESTS 28
4.1 SUMMARY. 28
4.2 CLASS 1 (PRIORITY NON-TAX CLAIMS). 29
4.3 CLASS 2A (SECURED TAX CLAIMS). 29
4.4 CLASS 2B (1997 BONDS SECURED CLAIMS). 30
4.5 CLASS 2C (1998 BONDS SECURED CLAIMS). 30
4.6 CLASS 2D (AUTO SECURED CLAIMS). 31
4.7 CLASS 2E (CAROLINA SECURED CLAIMS). 31
4.8 CLASS 2F (FIRST AMERICAN SECURED CLAIMS). 32
4.9 CLASS 2G (FOOTHILL SECURED CLAIMS). 32
4.10 INTENTIONALLY OMITTED. 33
4.11 INTENTIONALLY OMITTED. 33
4.12 CLASS 2J (THOMAS SECURED CLAIMS). 33
4.13 CLASS 2K (U.S. BANK SECURED CLAIMS). 34
4.14 CLASS 2L (OTHER SECURED AND SETOFF CLAIMS). 34
4.15 CLASS 3 (CONVENIENCE CLAIMS). 35
4.16 CLASS 4A (SENIOR NOTES CLAIMS). 36
4.17 CLASS 4B (JUNIOR NOTES CLAIMS). 36
4.18 CLASS 4C (REMIC GUARANTEE CLAIMS). 36
4.19 CLASS 4D (LITIGATION CLAIMS). 37
4.20 CLASS 4E (OTHER UNSECURED CLAIMS). 37
4.21 INTENTIONALLY OMITTED. 38
4.22 CLASS 6A (NON-DEBTOR-HELD INTERESTS). 38
4.23 INTENTIONALLY OMITTED. 38
ARTICLE V. CONDITIONS PRECEDENT 38
5.1 CONDITIONS TO CONFIRMATION. 38
(a) Under the Sale Option. 38
(b) Under the Stand Alone Option. 41
5.2 CONDITIONS TO CONSUMMATION. 42
(a) Under the Sale Option. 42
(b) Under the Stand Alone Option. 43
5.3 WAIVER OF CONDITIONS. 44
(vi)
5.4 EFFECT OF NONOCCURRENCE OF THE CONDITIONS TO
CONSUMMATION. 44
ARTICLE VI. IMPLEMENTATION 44
6.1 PLAN IMPLEMENTATION UNDER THE SALE OPTION. 45
(a) Consummation of Sale Transaction. 45
(b) Authorization of the Sale Transaction. 45
(c) Revesting and Transfer of Assets. 45
(d) Merger of Debtors and Vesting of Assets in
Reorganized Sale Debtors. 46
(e) Treatment of Old Common Stock, Interests and
Beneficial Interest in the Liquidation Trust. 46
(f) Considerations Regarding the Additional Debtors. 46
(g) Distributions of Cash. 47
6.2 PLAN IMPLEMENTATION UNDER THE STAND ALONE OPTION. 47
(a) Vesting of Assets. 47
(b) Amended and Restated Certificates of
Incorporation. 47
(c) Amended and Restated Bylaws. 48
(d) New Securities. 48
(e) Directors. 48
(f) Officers. 49
(g) Employment Contracts and Professional Retentions. 49
(h) Corporate Action and Other Documents and Actions. 49
(i) Approval of the Exit Facility. 49
(j) Distributions of Cash. 50
(k) Distributions of Proceeds from the
Liquidation Trust. 50
6.3 PROVISIONS CONCERNING PLAN IMPLEMENTATION
UNDER BOTH THE SALE OPTION AND THE STAND
ALONE OPTION. 50
(a) Substantive Consolidation. 50
(b) Creation of the Liquidation Trust. 51
(c) Federal Income Tax Treatment of the Trust
for the Liquidation Trust Assets. 52
(d) Appointment of Liquidation Trustee 54
(e) The Liquidation Trust Advisory Committee. 54
(f) Causes of Actions and Defenses. 55
(g) Termination of the Final DIP Agreement. 56
(h) Dissolution of the Creditors' Committee. 56
ARTICLE VII. EFFECTS OF PLAN CONFIRMATION 56
(vii)
7.1 DISCHARGE. 56
7.2 RETENTION OF CAUSES OF ACTION/RESERVATION OF RIGHTS. 57
7.3 POST-CONSUMMATION EFFECT OF EVIDENCE OF
CLAIMS OR INTERESTS. 57
7.4 TREATMENT OF FUTURE CLAIMS. 58
7.5 LIMITED RELEASES BY DEBTORS. 58
7.6 TERM OF INJUNCTIONS OR STAYS. 59
7.7 EXCULPATION. 59
7.8 INJUNCTION. 59
7.9 WAIVER OF CERTAIN CLAIMS. 60
7.10 INTENTIONALLY OMITTED. 61
7.11 RELEASE OF LIENS AND PERFECTION OF LIENS. 61
7.12 INSURANCE PRESERVATION. 62
ARTICLE VIII. GENERAL PROVISIONS REGARDING
TREATMENT OF CLAIMS AND INTERESTS AND
DISTRIBUTIONS UNDER THE PLAN 62
8.1 SPECIAL CONSIDERATIONS FOR DISTRIBUTIONS TO
CLASSES 4A, 4B AND 4C. 62
8.2 DISPUTED CLAIM RESERVES AND STAND ALONE VOTING TRUST. 63
(a) Establishment of Disputed Claim Reserves
for Cash Distributions. 63
(b) Establishment of the Stand Alone Voting
Trust for New Common Stock and New
Warrant Distribution. 63
(c) Amounts to Be Reserved. 63
(d) Distribution. 64
(e) Termination of Disputed Claim Reserve or
Stand Alone Voting Trust. 64
(f) Limitation of Liability for Funding the
Disputed Claim Reserve. 64
8.3 TRANSMITTAL OF DISTRIBUTIONS AND NOTICES. 65
8.4 UNCLAIMED DISTRIBUTIONS. 65
8.5 SETOFFS. 65
8.6 WITHHOLDING TAXES AND EXPENSES OF DISTRIBUTION. 65
8.7 ALLOCATION OF PLAN DISTRIBUTIONS BETWEEN
PRINCIPAL AND INTEREST. 66
8.8 DISPUTED IDENTITY OF HOLDER. 66
8.9 TRANSFERS OF CLAIMS. 66
8.10 METHOD OF CASH DISTRIBUTIONS. 67
8.11 DE MINIMIS DISTRIBUTIONS. 67
8.12 NO DISTRIBUTION IN EXCESS OF ALLOWED AMOUNT OF CLAIM. 67
8.13 EXEMPTION FROM CERTAIN TRANSFER TAXES. 67
(viii)
ARTICLE IX. EXECUTORY CONTRACTS AND UNEXPIRED LEASES 68
9.1 ASSUMPTION OR REJECTION OF EXECUTORY
CONTRACTS AND UNEXPIRED LEASES. 68
9.2 BAR DATE FOR REJECTION DAMAGES. 69
9.3 PROCEDURES FOR THE DETERMINATION OF CURE AMOUNTS. 69
ARTICLE X. DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS AND INTERESTS 70
10.1 OBJECTIONS TO CLAIMS AND INTERESTS. 70
10.2 ESTIMATION OF CLAIMS OR INTERESTS. 70
10.3 AMENDMENTS TO CLAIMS OR INTERESTS. 71
10.4 AUTHORITY TO SETTLE DISPUTED CLAIMS OR INTERESTS. 71
10.5 NO RECOURSE. 71
ARTICLE XI. ADMINISTRATIVE PROVISIONS 72
11.1 RETENTION OF JURISDICTION. 72
11.2 INTENTIONALLY OMITTED. 74
11.3 AMENDMENTS. 74
(a) Preconfirmation Amendment. 74
(b) Postconfirmation/Preconsummation
Amendment Not Requiring Resolicitation. 75
(c) Postconfirmation/Preconsummation
Amendment Requiring Resolicitation. 75
11.4 SEVERABILITY OF PLAN PROVISIONS. 75
11.5 SUCCESSORS AND ASSIGNS. 75
11.6 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS. 76
11.7 PLAN SUPPLEMENT. 76
11.8 CONFIRMATION ORDER AND PLAN CONTROL. 76
11.9 PAYMENT OF STATUTORY FEES. 76
11.10 WITHDRAWAL OF PLAN. 76
11.11 PAYMENT DATES. 77
11.12 NOTICES. 77
11.13 NO ADMISSIONS. 78
ARTICLE XII. CONFIRMATION REQUEST 79
(ix)
INTRODUCTION
The Chapter 11 Cases of Oakwood Homes Corporation, Oakwood
Mobile Homes, Inc., Oakwood Acceptance Corporation, LLC, HBOS Manufacturing, LP,
Suburban Home Sales, Inc., FSI Financial Services, Inc., Home Service Contract,
Inc., Tri-State Insurance Agency, Inc., New Dimension Homes, Inc., Dreamstreet
Company, LLC, Golden West Leasing, LLC, Crest Capital, LLC, Oakwood Shared
Services, LLC, Preferred Housing Services, LP, Oakwood MHD4, LLC, Oakwood
Financial Corporation, Oakwood Investment Corporation and Oakwood Servicing
Holdings Co., LLC, have been consolidated for procedural purposes only and are
being jointly administered pursuant to an order of the Bankruptcy Court. The
Plan is proposed by the Debtors. Reference is made to the Disclosure Statement
for a discussion of, among other things, the Debtors' history, businesses,
historical financial information and properties, and for a summary of the Plan.
All creditors entitled to vote on the Plan should review the Disclosure
Statement and the terms of the Plan before voting to accept or reject the Plan.
In addition, there are other agreements and documents which have been or will be
filed as the Plan Supplement which are referenced in the Plan and/or the
Disclosure Statement and will be available for review. No solicitation
materials, other than the Disclosure Statement and related materials transmitted
therewith and approved by the Bankruptcy Court, have been authorized by the
Bankruptcy Court for use in soliciting acceptances or rejections of the Plan.
ARTICLE I.
DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
1.1 DEFINITIONS.
The capitalized terms set forth below shall have the following
meanings:
(1) 1997 BONDS SECURED CLAIM means that portion of the
Claim of Wells Fargo Bank, N.A. arising under loan agreements with Elkhart
County, Indiana respecting certain variable rate demand economic development
bonds, but only to the extent that it is a Secured Claim secured by a Letter of
Credit Mortgage on Debtor HBOS Manufacturing, LP's plant in Elkhart County,
Indiana.
(2) 1997-A GUARANTEE means the Limited Guarantee by
Oakwood, dated February 1, 1997, of the B-Piece REMIC Certificates issued by OMI
Trust 1997-A.
(3) 1997-B GUARANTEE means the Limited Guarantee by
Oakwood, dated May 1, 1997, of the B-Piece REMIC Certificates issued by OMI
Trust 1997-B.
(4) 1997-C GUARANTEE means the Limited Guarantee by
Oakwood, dated August 1, 1997, of the B-Piece REMIC Certificates issued by OMI
Trust 1997-C.
(5) 1997-D GUARANTEE means the Limited Guarantee by
Oakwood, dated November 1, 1997, of the B-Piece REMIC Certificates issued by OMI
Trust 1997-D.
1
(6) 1998 BONDS SECURED CLAIM means that portion of the
Claim of Wells Fargo Bank, N.A. arising under loan agreements with Kosciusko
County, Indiana respecting certain variable rate demand economic development
bonds, but only to the extent that it is a Secured Claim secured by a Letter of
Credit and Mortgage on Debtor HBOS Manufacturing, LP's plant in Kosciusko
County, Indiana.
(7) 1998-B GUARANTEE means the Limited Guarantee by
Oakwood, dated May 1, 1998, of the B-Piece REMIC Certificates issued by OMI
Trust 1998-B.
(8) 1998-C GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
1998-C.
(9) 1998-D GUARANTEE means the Limited Guarantee by
Oakwood, dated October 1, 1998, of the B-Piece REMIC Certificates issued by OMI
Trust 1998-D.
(10) 1999-A GUARANTEE means the Limited Guarantee by
Oakwood, dated January 1, 1999, of the B-Piece REMIC Certificates issued by OMI
Trust 1999-A.
(11) 1999-B GUARANTEE means the Limited Guarantee by
Oakwood, dated April 1, 1999, of the B-Piece REMIC Certificates issued by OMI
Trust 1999-B.
(12) 1999-C LIMITED GUARANTEE means the Limited Guarantee
by Oakwood, dated June 1, 1999, of the B-Piece REMIC Certificates issued by OMI
Trust 1999-C.
(13) 1999-C GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
1999-C.
(14) 1999-D GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
1999-D.
(15) 1999-E GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
1999-E.
(16) 2000-A GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
2000-A.
(17) 2000-B GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
2000-B.
(18) 2001-B GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
2001-B.
(19) 2001-C GUARANTEE means the Guarantee by Oakwood,
dated August 10, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
2001-C.
(20) 2001-D GUARANTEE means the Guarantee by Oakwood,
dated January 10, 2002, of the B-Piece REMIC Certificates issued by OMI Trust
2001-D.
2
(21) 2001-E GUARANTEE means the Guarantee by Oakwood,
dated November 1, 2001, of the B-Piece REMIC Certificates issued by OMI Trust
2001-E.
(22) 2002-A GUARANTEE means the Guarantee by Oakwood,
dated February 1, 2002, of the B-Piece REMIC Certificates issued by OMI Trust
2002-A.
(23) 2002-B GUARANTEE means the Guarantee by Oakwood,
dated May 1, 2002, of the B-Piece REMIC Certificates issued by OMI Trust 2002-B.
(24) ADMINISTRATIVE CLAIM means: (a) a DIP Claim; (b) a
Claim, other than a Fee Claim, for payment of costs or expenses of
administration specified in sections 503(b) and 507(a)(1) of the Bankruptcy
Code, including, without limitation (i) the actual, necessary costs and expenses
incurred after the Petition Date for preserving the Estates and operating the
businesses of the Debtors (such as wages, salaries or commissions for services
rendered) and (ii) all fees and charges assessed against the Estates pursuant to
section 1930 of title 28 of the United States Code; (c) cure costs associated
with the assumption or assumption and assignment of executory contracts and
unexpired leases pursuant to section 365 of the Bankruptcy Code; or (d) any
Claim based upon a seller's common law right to reclaim goods as used in section
546(c) of the Bankruptcy Code pursuant to the Bankruptcy Court's Order
Establishing Procedures With Respect To Reclamation Claims (D.I. 36) entered on
November 19, 2002 (y) that has been granted priority under section 546(c)(2)(A)
of the Bankruptcy Code or (z) which the Debtors, in their reasonable discretion,
elect to treat as though such priority has been granted. Notwithstanding the
foregoing, Administrative Claims shall not include any Intercompany Claims.
(25) ADMINISTRATIVE CLAIM BAR DATE ORDER means the
Bankruptcy Court's order (D.I. 2148) which established the bar date for the
filing of certain Administrative Claims arising between the Petition Date and
September 30, 2003.
(26) AFFILIATE DEBTOR(s) means, in the singular or plural
form, the following debtors and debtors-in-possession under the Bankruptcy Code
in Chapter 11 Case Nos. 02-13390 through 02-13395, 02-13397 through 02-13404 and
04-10743 through 04-10747, pending in the Bankruptcy Court: Oakwood Mobile
Homes, Inc., Oakwood Acceptance Corporation, LLC, HBOS Manufacturing, LP,
Suburban Home Sales, Inc., FSI Financial Services, Inc., Home Service Contract,
Inc., Tri-State Insurance Agency, Inc., New Dimension Homes, Inc., Dreamstreet
Company, LLC, Golden West Leasing, LLC, Crest Capital, LLC, Oakwood Shared
Services, LLC, Preferred Housing Services, LP, Oakwood MHD4, LLC, Oakwood
Financial Corporation, Oakwood Investment Corporation and Oakwood Servicing
Holdings Co., LLC.
(27) ALLOWED CLAIM OR INTEREST means a Claim or Interest
to the extent (a) such Claim or Interest is scheduled by a Debtor pursuant to
the Bankruptcy Code and Bankruptcy Rules in a liquidated amount and not listed
as contingent, unliquidated, zero, undetermined or disputed; or (b) a proof of
such Claim has been timely filed, or deemed timely filed with the Bankruptcy
Court pursuant to the Bankruptcy Code, the Bankruptcy Rules and/or any
applicable Final Orders of the Bankruptcy Court, or late filed with leave of the
Bankruptcy Court, and either (i) is not objected to within the period fixed by
the Bankruptcy Code, the Bankruptcy Rules and/or applicable orders of the
Bankruptcy Court or (ii) has otherwise been
3
allowed by a Final Order. An Allowed Claim or Allowed Interest: (y) includes a
previously Disputed Claim or Interest to the extent such Disputed Claim or
Interest becomes allowed when the context so requires; and (z) shall be net of
any valid setoff or recoupment amount based on a valid offset or recoupment
right. Unless otherwise expressly provided herein, in the Confirmation Order or
in another Final Order of the Bankruptcy Court, the term "Allowed Claim" or
"Allowed Interest" shall not, for the purposes of computation of distributions
under the Plan, include (i) any non-compensatory penalties, fines, punitive
damages, exemplary damages, multiple damages, treble damages or any other claims
or obligations that do not compensate for actual losses incurred or (ii) any
other amounts not allowable under the Bankruptcy Code or applicable law.
(28) ALLOWED [CLASS DESIGNATION] CLAIM OR INTEREST means
an Allowed Claim or Allowed Interest in the specified Class. For example, an
Allowed Convenience Claim is an Allowed Claim in the Class designated herein as
Class 3.
(29) AMENDED AND RESTATED BYLAWS mean the Reorganized
Stand Alone Debtors' bylaws which shall be substantially in the form set forth
in the Plan Supplement.
(30) AMENDED AND RESTATED CERTIFICATES OF INCORPORATION
means the Reorganized Stand Alone Debtors' certificates of incorporation, LLC
agreements or similar organizational documents in effect under the laws of the
appropriate states, as amended by the Plan, which shall be substantially in the
form set forth in the Plan Supplement.
(31) APPROVAL HEARING means the Approval Hearing as set
forth in the Bid Procedures Order.
(32) ASSETS means all assets and properties of every kind,
nature, character and description (whether real, personal or mixed, whether
tangible or intangible (including contract rights), wherever situated and by
whomever possessed), including the goodwill related thereto, operated, owned or
leased by the Debtors that constitute property of the Estates within the purview
of section 541 of the Bankruptcy Code, including without limitation, any and all
claims, causes of action or rights of the Debtors under federal, state or
foreign law, letters of credit issued for or on behalf of the Debtors and the
proceeds thereof and monies deposited to secure the performance of any contract
or lease by the Debtors or any affiliate thereof.
(33) AUTO SECURED CLAIM means that portion of the Claim of
Citizens Federal S&L and other lenders, but only to the extent that it is a
Secured Claim secured by eight (8) automobiles owned by Debtor Suburban Home
Sales, Inc.
(34) AVOIDANCE ACTIONS mean any claims, rights, defenses
or other causes of action arising under any section of chapter 5 of the
Bankruptcy Code, including, without limitation, sections 502, 510, 541, 542,
543, 544, 545, 547, 548, 549, 550, 551 and 553 of the Bankruptcy Code or under
similar or related state or federal statues and common law, including state
fraudulent transfer laws, whether or not litigation has been commenced as of the
Confirmation Date to prosecute such actions.
(35) B-2 REMIC GUARANTEES means collectively, the 1997-A
Guarantee, the 1997-B Guarantee, the 1997-C Guarantee, the 1997-D Guarantee, the
1998-B Guarantee, the
4
1998-C Guarantee, the 1998-D Guarantee, the 1999-A Guarantee, the 1999-B
Guarantee, the 1999-C Limited Guarantee, the 1999-C Guarantee, the 1999-D
Guarantee, the 1999-E Guarantee, the 2000-A Guarantee, the 2000-B Guarantee, the
2001-B Guarantee, the 2001-C Guarantee, the 2001-D Guarantee, the 2001-E
Guarantee, the 2002-A Guarantee and the 2002-B Guarantee.
(36) B-PIECE REMIC CERTIFICATES means the B-2 certificates
issued by the REMIC Trusts.
(37) BALLOT means the ballot distributed to each eligible
Holder of a Claim or Interest by the Balloting Agent, on which ballot such
Holder may, among other things, vote for or against the Plan.
(38) BALLOT DEADLINE means the date and time set by the
Bankruptcy Court by which the Balloting Agent must receive all Ballots.
(39) BALLOTING AGENT means the entity designated by the
Bankruptcy Court to distribute, collect and tabulate Ballots from Holders, or
any successor Claims Agent. Initially, the Balloting Agent is BSI.
(40) BANKRUPTCY CODE means title 11 of the United States
Code, as now in effect or hereafter amended.
(41) BANKRUPTCY COURT means the United States Bankruptcy
Court for the District of Delaware, having jurisdiction over the Chapter 11
Cases and, to the extent of any withdrawal of the reference made pursuant to
section 157 of title 28 of the United States Code, the United States District
Court for the District of Delaware.
(42) BANKRUPTCY RULES means the Federal Rules of
Bankruptcy Procedure and the local rules and general orders of the Bankruptcy
Court, as now in effect or hereafter amended.
(43) BAR DATE ORDER means the Bankruptcy Court's Order
Establishing Bar Dates for Filing Proofs of Claim and Approving Form and Manner
of Notice Thereof (D.I. 370), dated January 7, 2003 which established the bar
date for the filing of proofs of Unsecured Claims as March 27, 2003.
(44) BERKSHIRE means Berkshire Hathaway Inc., a
corporation incorporated under the laws of Delaware.
(45) BID PROCEDURES ORDER means the Order Under 11 U.S.C.
Sections 105(a) and 363 and Fed. R. Bankr. P. 2002 and 6004 Approving Bidding
Procedures, Break-Up Fee, Performance of Pre-Closing Obligations, and Form and
Manner of Notice Thereof with Respect to Proposed Sale Pursuant to Plan of
Reorganization (D.I. 2652).
(46) BSI means Bankruptcy Services LLC.
5
(47) BUSINESS DAY means any day except a Saturday, Sunday
or "legal holiday" as such term is defined in Bankruptcy Rule 9006(a).
(48) BUYER means Clayton Homes, Inc. or its designee or
its designees, as set forth in the Purchase Agreement.
(49) CAROLINA SECURED CLAIM means that portion of the
Claim of Carolina First Bank arising under a note dated December 27, 2001, but
only to the extent that it is a Secured Claim secured by land owned by Debtor
Oakwood Mobile Homes, Inc. and located at 3200 Earle E. Morris, Jr. Hwy,
Piedmont, South Carolina.
(50) CASH means cash and Cash Equivalents, including but
not limited to bank deposits, checks, treasury notes and other marketable
securities.
(51) CASH EQUIVALENTS means equivalents of cash in the
form of readily marketable securities or instruments issued by a person other
than the Debtors or Reorganized Sale Debtors, including, without limitation,
U.S. Government Obligations, commercial paper of domestic corporations carrying
a Moody's Rating of "A" or better, or equivalent rating of any other nationally
recognized rating service, or interest-bearing certificates of deposit or
similar obligations of domestic banks or other financial institutions having a
shareholders' equity or equivalent capital of not less than Two Hundred Million
U.S. Dollars ($200,000,000.00), having maturities of no more than one (1) year,
at the then best generally available rates of interest for like amounts and like
periods.
(52) CAUSES OF ACTION mean any and all claims, rights,
defenses, offsets, recoupments, actions in law or equity or otherwise, causes of
action, choses in action, suits, damages, rights to legal or equitable remedies,
judgments, third-party claims, counterclaims and cross-claims, including, but
not limited, to: all Avoidance Actions and all other claims in avoidance,
recovery, subordination or other actions against any Persons, including, but not
limited to, those actions described in the Disclosure Statement as amended, the
Schedules of Assets and Liabilities as amended from time to time, the Statement
of Financial Affairs as amended from time to time and the Plan as amended,
whether arising under the Bankruptcy Code or federal, state, or common law, but
regardless of whether any of the foregoing matters are subject to pending
litigation or proceedings at the Confirmation Date or brought after that date;
provided, however, that under the Sale Option, Causes of Action do not include
those claims, rights, defenses, offsets, recoupments, actions in equity or other
causes of action that are transferred to the Buyer pursuant to the Purchase
Agreement.
(53) CHAPTER 11 CASE means the chapter 11 case of each
Debtor pending before the Bankruptcy Court.
(54) CLAIM means any claim, as such term is defined in
section 101(5) of the Bankruptcy Code, including but not limited to any
liability, Interest, Lien, encumbrance or any other "debt" (as that term is
defined in section 101(12) of the Bankruptcy Code), from or against the Debtors,
their Estates, whether reduced to judgment or not, liquidated or unliquidated,
contingent or noncontingent, asserted or unasserted, fixed or not, matured or
unmatured, disputed or undisputed, legal or equitable, known or unknown, or
arising from any agreement of the
6
Debtors entered into or obligation of any kind of the Debtors incurred before
the Effective Date, or from any conduct of the Debtors occurring prior to the
Effective Date or that otherwise arose before the Effective Date (including,
without limitation, all interest, if any, on any such debts, whether such
interest accrued before or after the date of commencement of the applicable
Chapter 11 Case).
(55) CLAIMS AGENT means the entity designated by the
Bankruptcy Court to act as the claims agent in the Chapter 11 Cases, or any
successor claims agent. As of the date of the Plan, the Claims Agent is BSI.
(56) CLAIMS/INTERESTS OBJECTION DEADLINE means the last
day for filing objections to Claims, including but not limited to Administrative
Claims, and Interests as provided in Article X of the Plan.
(57) CLASS means a group of Claims or Interests described
in Articles III and IV of the Plan.
(58) CONFIRMATION DATE means the date the Bankruptcy Court
enters the Confirmation Order on its docket.
(59) CONFIRMATION HEARING means the hearing or hearings
pursuant to which the Bankruptcy Court considers the confirmation of this Plan.
(60) CONFIRMATION ORDER means the order of the Bankruptcy
Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
(61) CONVENIENCE CLAIM means the Claims of a Holder of one
or more Allowed Unsecured Claims that, pursuant to section 1122(b) of the
Bankruptcy Code, otherwise would be Allowed Other Unsecured Claims that have
aggregate Face Amounts of: (i) $5,000.00 or less unless the Holder has properly
made the Convenience Class Opt-Out Election on a Ballot properly cast by the
Ballot Deadline to opt out of Class 3; or (ii) more than $5,000.00 if the Holder
has properly made the Convenience Class Opt-In Election on a Ballot properly
cast by the Ballot Deadline to opt into Class 3.
(62) CONVENIENCE CLASS ELECTION means a Convenience Class
Opt-In Election and/or a Convenience Class Opt-Out Election.
(63) CONVENIENCE CLASS OPT-IN ELECTION means the election
available to a Holder of one or more Allowed Other Unsecured Claims with
aggregate Face Amounts in excess of $5,000.00 to opt into Class 3 and have such
Claim(s) treated as a Convenience Claim; provided, however, that the Holder of
Such Allowed Other Unsecured Claim(s) has agreed to reduce the Face Amount of
such Claim(s) for purposes of voting and distributions under the Plan to a
single Claim in an amount equal to or less than $5,000.00.
(64) CONVENIENCE CLASS OPT-OUT ELECTION means the election
available to a Holder of one or more Allowed Unsecured Claims that, pursuant to
section 1122(b) of the Bankruptcy Code, otherwise would be a Convenience Claim
that has an aggregate Face Amount
7
of $5,000.00 or less to opt out of Class 3 and have such Claim treated as an
Other Unsecured Claim.
(65) CREDITORS' COMMITTEE means the Official Committee of
Unsecured Creditors in the Chapter 11 Cases, as appointed by the United States
Trustee and reconstituted from time to time.
(66) DEBTOR-HELD INTEREST means an Interest in Oakwood or
an Affiliate Debtor when the Holder is another Debtor.
(67) DEBTOR(s) mean, in the singular form, Oakwood or any
one of the Affiliate Debtors and, in the plural form, all of Oakwood and the
Affiliate Debtors.
(68) DIP CLAIM means a Claim of a DIP Lender arising under
the Final DIP Agreement and the Final DIP Order.
(69) DIP LENDERS collectively means Greenwich Capital
Financial Products, Inc. and the other financial institutions (including
Berkshire or one of its designees or affiliates) lending under the Final DIP
Agreement.
(70) DISALLOWED means a Claim or Interest or any portion
thereof that (a) has been disallowed by a Final Order, (b) is scheduled at zero
or as contingent, disputed or unliquidated and as to which no Proof of Claim has
been timely filed pursuant to the Bar Date Order or deemed timely filed with the
Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order or
(c) is not scheduled by the Debtors in the Schedules of Assets and Liabilities
and as to which (i) no Proof of Claim has been timely filed pursuant to the Bar
Date Order or deemed timely filed with the Bankruptcy Court pursuant to either
the Bankruptcy Code or any Final Order, or (ii) no request for payment of an
Administrative Claim or Fee Claim has been timely filed by the applicable
deadline pursuant to Sections 2.8 and 2.9 of the Plan or deemed timely filed
with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final
Order.
(71) DISCLOSURE STATEMENT means the disclosure statement
that relates to this Plan that was approved by the Bankruptcy Court (D.I. 2050),
as such Disclosure Statement may be amended, modified, or supplemented,
including the supplemental disclosure statement (D.I. 3538) approved by the
Bankruptcy Court by the Disclosure Statement Order pursuant to section 1125 of
the Bankruptcy Code (and all exhibits and schedules annexed thereto or referred
to therein).
(72) DISCLOSURE STATEMENT ORDER means the order of the
Bankruptcy Court approving the Disclosure Statement, as supplemented, as
containing adequate information pursuant to section 1125 of the Bankruptcy Code
(D.I. 3543).
(73) DISPUTED AMOUNT means an amount equal to the total of
that portion (including, when appropriate, the whole) of a Claim or Interest
that is a Disputed Claim or Interest, including that portion of the Face Amount
of a Disputed Claim or Interest which is not an Allowed Claim or Interest or a
Disallowed Claim or Interest.
8
(74) DISPUTED CLAIM OR INTEREST means that portion
(including, when appropriate, the whole) of a Claim or Interest that is not an
Allowed Claim or Interest or Disallowed Claim or Interest and (i) to which an
objection has been timely filed or (ii) before the time that an objection has
been or may be filed if: (a) the amount or classification of the Claim or
Interest specified in the relevant proof of Claim or Interest exceeds the amount
or is different from the classification of any corresponding Claim or Interest
scheduled by the relevant Debtor in its Schedules of Assets and Liabilities; (b)
any corresponding Claim or Interest scheduled by the relevant Debtor has been
scheduled as disputed, contingent or unliquidated; or (c) no corresponding Claim
or Interest has been scheduled by the relevant Debtor in its Schedules of Assets
and Liabilities.
(75) DISPUTED CLAIMS RESERVE shall have the meaning
ascribed to it in Section 6.3(c)(ii) of the Plan.
(76) DISTRIBUTION ADDRESS means (a) the address indicated
on any notice of appearance filed by a Person or his authorized agent prior to
the Effective Date, (b) if no notice of appearance has been filed, then the
address indicated on a properly filed Proof of Claim or, absent such a Proof of
Claim, the address set forth in the relevant Schedule of Assets and Liabilities
for that Person or register maintained for registered securities, or (c) for
REMIC Guarantee Claims, the address set forth in Section 8.3 of the Plan.
(77) DISTRIBUTION DATE means (i) initially, the Initial
Distribution Date, and (ii) subsequently, the Quarterly Distribution Dates or
such other dates as the Liquidation Trust may establish from time to time to
make any distribution.
(78) EFFECTIVE DATE means: (a) if no stay of the
Confirmation Order is in effect, the first Business Day after the date all of
the conditions set forth in the Plan have been satisfied or waived as set forth
in the Plan, or such later date as may reasonably be agreed to by the Debtors,
the Creditors' Committee and the Buyer (under the Sale Option) or Berkshire
(under the Stand Alone Option); or (b) if a stay of the Confirmation Order is in
effect, on the first Business Day (or such later date as may reasonably be
agreed by the Debtors, the Creditors' Committee and the Buyer (under the Sale
Option) or Berkshire (under the Stand Alone Option)) after the later of: (i) the
date such stay is vacated; and (ii) the date each condition set forth in the
Plan has been satisfied or waived as set forth in the Plan.
(79) ESTATE means the relevant estate created in each of
the Chapter 11 Cases pursuant to section 541 of the Bankruptcy Code, both
individually and collectively, including the consolidated Estates of the Debtors
pursuant to the Plan and the Confirmation Order.
(80) ESTIMATION ORDER means a Final Order of the
Bankruptcy Court, pursuant to Rule 3018 of the Bankruptcy Rules, which may be
the Confirmation Order, estimating for voting, distribution or any other proper
purposes under the Bankruptcy Code (under section 502(c) of the Bankruptcy Code)
the aggregate (and if applicable, individual) Face Amount of Disputed Claims,
whether classified or unclassified under this Plan.
9
(81) EXCLUDED ASSETS mean those Assets that, under the
Sale Option, will not be Transferred to the Buyer on the Effective Date, as
provided in the Purchase Agreement. For the avoidance of doubt, the Causes of
Action are Excluded Assets.
(82) EXCLUDED SALE DEBTOR ASSETS mean the following
Excluded Assets: (a) all policies of insurance held by the Debtors and their
non-debtor affiliates; and (b) all Excluded Assets owned by OFC and OIC.
(83) EXCLUDED SALE TRUST ASSETS mean all Excluded Assets
other than the Excluded Sale Debtor Assets.
(84) EXECUTORY CONTRACT SCHEDULE means the schedule of
executory contracts and unexpired leases designated by the Debtors for
assumption, under the Sale Option, or rejection, under the Stand Alone Option,
as of the Effective Date of the Plan, pursuant to sections 365 and 1123(b)(2) of
the Bankruptcy Code and Section 9.1 of this Plan, which shall be in
substantially the form contained in the Plan Supplement.
(85) EXIT FACILITY means the financing or financings
obtained by the Debtors pursuant to the Exit Facility Agreement under the Stand
Alone Option.
(86) EXIT FACILITY AGREEMENT means, under the Stand Alone
Option, that certain financing agreement obtained by the Debtors which is
substantially in the form set forth in the Plan Supplement.
(87) EXIT FACILITY LENDER means the lender or lenders
providing the Exit Facility under the Stand Alone Option.
(88) FACE AMOUNT means: (a) with respect to any Claim for
which a Proof of Claim is filed, an amount equal to: (i) the liquidated amount,
if any, set forth therein; or (ii) any other amount set forth in an Estimation
Order or order allowing such a Claim; or (b) with respect to any Claim scheduled
in the relevant Debtor's Schedules of Assets and Liabilities, but for which no
Proof of Claim is timely filed, the amount of the Claim scheduled as undisputed,
noncontingent and liquidated.
(89) FEE CLAIM means: (a) a Claim of a professional person
retained by order of the Bankruptcy Court for compensation and/or reimbursement
of expenses pursuant to section 327, 328, 330 or 331 of the Bankruptcy Code in
connection with the Chapter 11 Cases or (b) a Claim of any professional or other
party-in-interest seeking compensation or reimbursement of expenses in
connection with the Chapter 11 Cases pursuant to sections 503(b)(3), 503(b)(4),
503(b)(5) or 503(b)(6) of the Bankruptcy Code.
(90) FEE ORDER means the Bankruptcy Court's Administrative
Order, Pursuant To Sections 331 And 105 Of The Bankruptcy Code, Establishing
Procedures For Interim Compensation And Reimbursement Of Expenses Of
Professionals [D.I. 60] dated December 18, 2002 (D.I. 277), in the Chapter 11
Cases, as may have been amended or supplemented from time to time.
10
(91) FINAL DIP AGREEMENT means the Amended and Restated
Debtor-In-Possession Financing And Security Agreement, dated as of December 31,
2003, by and among the Debtors and Greenwich Capital Financial Products, Inc.,
as agent, and all other supporting and related agreements and documents, as
amended, whenever finalized and signed, as authorized by the Final DIP Order.
(92) FINAL DIP ORDER means the Bankruptcy Court's Final
Order Pursuant To 11 U.S.C. Sections 105, 362 And 364, And Bankruptcy Rules
2002, 4001 And 9014 (a) Approving Replacement Debtor-In-Possession Financing
With Administrative Expense Superpriority And Secured By Senior Liens, (b)
Granting Senior Liens And Superpriority Administrative Expense Status And (c)
Granting Other Relief (D.I. 328) dated December 31, 2002 as amended and restated
by the Bankruptcy Court's Final Order Pursuant To 11 U.S.C. Sections 105, 362
And 364, And Bankruptcy Rules 2002, 4001 And 9014 (a) Approving Replacement
Debtor-In-Possession Financing With Administrative Expense Superpriority And
Secured By Senior Liens, (b) Granting Senior Liens And Superpriority
Administrative Expense Status And (c) Granting Other Relief (D.I. 3346) dated
January 15, 2004.
(93) FINAL ORDER means an order or judgment of the
Bankruptcy Court, as entered on the docket of the Bankruptcy Court, that has not
been reversed, stayed, modified or amended, and as to which: (a) the time to
appeal or seek review has expired and no timely filed appeal or petition for
review, rehearing, remand or certiorari is pending; or (b) any appeal taken or
petition for review, rehearing, remand or certiorari filed has been resolved by
the highest court to which the order or judgment was appealed or from which
certiorari was sought; provided, however, that the possibility that a motion
under section 502(j) of the Bankruptcy Code, Rule 59 or Rule 60 of the Federal
Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules or
other rules or law governing procedure in cases before the Bankruptcy Court, may
be filed with respect to such order shall not cause such order not to be a Final
Order.
(94) FIRST AMERICAN SECURED CLAIM means that portion of
the Claim of First American Title on behalf of Yuet and Toy Wong arising under a
note dated July 8, 1981, but only to the extent that it is a Secured Claim
secured by property owned by Debtor HBOS Manufacturing, LP and located at 6258
Northwest Grand Ave., Glendale, Arizona 85301.
(95) FOOTHILL collectively means Foothill Capital
Corporation and certain other lenders (including Wells Fargo Bank, N.A.) under
the Prepetition Loan Agreement.
(96) FOOTHILL SECURED CLAIM means that portion of the
Claim of Foothill arising under the Prepetition Loan Agreement, but only to the
extent that it is a Secured Claim secured by an escrow deposit established
pursuant to the Bankruptcy Court's Order Adjourning Hearing On Foothill Capital
Corp.'s As Agent For Itself & Certain DIP Lenders, Notice Of Payoff & Setting
Dates By Which Briefs Are Due (D.I. 471), dated January 23, 2003; and the
agreement executed pursuant to that order.
(97) FUTURE CLAIM means any Claim against a Debtor that
(a) arises out of or relates to pre-Confirmation Date actions, omissions,
events, occurrences, or failures, (b) did not manifest itself sufficiently prior
to the Confirmation Date to provide the Holder of the Claim with a
Constitutionally sufficient opportunity to file proof of such Claim or otherwise
assert
11
rights with respect to such Claim in the Debtors' Chapter 11 cases, and (c) did
not "arise" for purposes of applicable non-bankruptcy law until after the
Confirmation Date.
(98) HOLDER means a Person holding an Interest or a Claim.
(99) IMPAIRED shall have the meaning ascribed to such term
in section 1124 of the Bankruptcy Code.
(100) INITIAL DISTRIBUTION DATE means (a) with respect to
Administrative Claims, Priority Non-Tax Claims, Priority Tax Claims and
Convenience Claims, the date that is the later of (i) the Effective Date (or as
soon thereafter as reasonably practicable) and (ii) the date (or as soon
thereafter as is reasonably practicable) such Claims become Allowed Claims or
otherwise become payable under the Plan; (b) with respect to Fee Claims, the
date (or as soon thereafter as reasonably practicable) that such Claims (i) are
allowed by Final Order of the Bankruptcy Court or (ii) become Allowed Claims
after the Effective Date; and (c) with respect to the Secured Claims, the Junior
Notes Claims, the Senior Notes Claims, the REMIC Guarantee Claims, the
Litigation Claims, the Other Unsecured Claims and the Interests (subject to the
priority scheme set forth in the Plan), the date as soon as reasonably
practicable after the Effective Date or the date they become Allowed Claims.
With respect to Secured Claims, occurrence of the Distribution Date shall be
subject, if applicable, to the Estates' receipt of the Net Proceeds of the sale
of the relevant collateral.
(101) INITIAL STAND ALONE TRUST ASSETS means the Causes of
Action and $1,000,000 in Cash.
(102) INSIDER shall have the meaning ascribed to such term
in section 101(31) of the Bankruptcy Code.
(103) INTERCOMPANY CLAIM means a Claim of any Debtor
against another Debtor, whether arising before or after the Petition Date,
including, without limitation, any Claim by OAC against OSHC for damages arising
from rejection of the Subservicing Agreements.
(104) INTEREST means any equity security, including Old
Common Stock, within the meaning of section 101(16) of the Bankruptcy Code, in a
Debtor. For purposes of voting and distributions under the Plan, the defined
term Interest shall also include a Claim against a Debtor that is subject to
subordination under section 510(b) of the Bankruptcy Code.
(105) INTERESTED PARTY PROFESSIONALS means the following
professionals, and only the following professionals, of the Debtors, the
Creditors' Committee or members and ex officio members of the Creditors'
Committee: Morris, Nichols, Arsht & Tunnell; Rayburn, Cooper & Durham, P.A.;
Hunton & Williams; Kennedy Covington Lobdell & Hickman L.L.P.; FTI Consulting,
Inc.; PricewaterhouseCoopers LLP; Akin Gump Strauss Hauer & Feld LLP; McCarter &
English, LLP; Deloitte & Touche LLP; Alvarez & Marsal; Stites & Harbison, PLLC;
Faegre & Benson LLP; Seward & Kissel LLP; Richards, Layton & Finger, P.C.;
Morgan Lewis & Bockius LLP; Prime Locations, LLC; The Core Network; Andrew
Davidson & Co., Inc.; Miller Buckfire Lewis Ying & Co., LLC; Munger, Tolles &
Olson LLP; Young Conaway Stargatt & Taylor, LLP; and King & Spalding LLP.
12
(106) JPMORGAN means JPMorgan Chase Bank, formerly known as
The Chase Manhattan Bank.
(107) JUNIOR NOTES mean the 8% Reset Debentures in the
original principal amount of $17 million due June 1, 2007, pursuant to an
Indenture and a First Supplemental Indenture, both dated March 1, 1992, and the
8% Reset Debentures in the original principal amount of $23 million due June 1,
2007, pursuant to a Second Supplemental Indenture dated July 15, 1992.
(108) JUNIOR NOTES CLAIM means an Unsecured Claim of the
Junior Notes Indenture Trustee under the Junior Notes Indenture, or an Unsecured
Claim of any Holder of Junior Notes for the payment of any principal, premium,
if any, and interest owing and unpaid as of the Petition Date in respect of such
Junior Notes.
(109) JUNIOR NOTES INDENTURE means the Indenture and First
Supplemental Indenture both dated March 1, 1992 and the Second Supplemental
Indenture dated July 15, 1992, between the Debtors and First Union National
Bank, f/k/a Delaware Trust Company, with respect to the Junior Notes, as the
same may have been amended and/or supplemented from time to time.
(110) JUNIOR NOTES INDENTURE TRUSTEE means U.S. Bank Trust,
N.A., as the indenture trustee under the Junior Notes Indenture, or any
successor indenture trustees under the Junior Notes Indenture.
(111) LIEN has the meaning ascribed to such term in section
101(37) of the Bankruptcy Code (but a lien that has or may be avoided pursuant
to an Avoidance Action or any other Cause of Action shall not constitute a
Lien).
(112) LIQUIDATION TRUST means the trust created on the
Effective Date pursuant to this Plan and the Liquidation Trust Agreement.
(113) LIQUIDATION TRUST ADVISORY COMMITTEE means the
advisory board that is to be created pursuant to Section 6.3 of the Plan.
(114) LIQUIDATION TRUST AGREEMENT means that certain
agreement which is to govern the Liquidation Trust, substantially in the form
set forth in the Plan Supplement.
(115) LIQUIDATION TRUSTEE means the trustee appointed
pursuant to the Plan and the Liquidation Trust Agreement.
(116) LITIGATION CLAIMS means: (a) all Claims against the
Debtors asserted under lawsuits or complaints which are pending as of the
commencement of the Chapter 11 Cases in any court, including, without
limitation, state or federal court; (b) all Claims against the Debtors subject
to mediation or arbitration which are pending as of the commencement of the
Chapter 11 Cases that could potentially be asserted under lawsuits or complaints
in any court; or (c) all Claims raised or made to the Debtors by any Person,
including, without limitation, offices of state attorneys general, related to
matters arising prior to commencement of the Chapter 11
13
Cases that could have been asserted under lawsuits or complaints in any court or
could have been subject to mediation or arbitration.
(117) NET PROCEEDS means the Cash consideration received
from the sale, Transfer, or collection of property of the Estates or the
conversion of such property to Cash in some other manner as contemplated in, or
reasonably within the scope of, this Plan including the Purchase Consideration,
whether occurring prior to or after the Effective Date, less the reasonable,
necessary and customary expenses attributable to such sale, Transfer, collection
or conversion, including costs of curing defaults under executory contracts that
are assigned, paying personal property or other taxes accruing in connection
with such sale, Transfer or conversion of such property, brokerage fees and
commissions, collection costs, reasonable attorneys' fees and expenses, and any
applicable taxes or other claims of any governmental authority in connection
with such property and any escrows or accounts established to hold funds for
purchase price adjustments, indemnification claims or other purposes in
connection with such sale, Transfer or collection; provided, however, that upon
the release to the Liquidation Trust (under the Sale Option) or the Reorganized
Stand Alone Debtors (under the Stand Alone Option) of funds from such escrows or
accounts, such funds shall become Net Proceeds of the relevant sale, Transfer or
collection.
(118) NEW COMMON STOCK means, under the Stand Alone Option,
the 20,000,000 shares of common stock of Reorganized Stand Alone Oakwood to be
authorized in accordance with the Plan and Reorganized Stand Alone Oakwood's
Amended and Restated Certificate of Incorporation, having a par value of $0.01
per share.
(119) NEW WARRANTS means, under the Stand Alone Option,
warrants to purchase 1,000,000 shares of New Common Stock pursuant to the terms
of the Warrant Agreement, under the Stand Alone Option.
(120) NON-DEBTOR-HELD INTEREST means an Interest in Oakwood
when the Holder is not a Debtor.
(121) OAC means Oakwood Acceptance Corporation, LLC.
(122) OAKWOOD means Oakwood Homes Corporation.
(123) OFC means Oakwood Financial Corporation.
(124) OFC AND OIC TAX CLAIMS mean all contingent
unliquidated Claims (a) against OFC for federal and state income taxes arising
out of its ownership of certain of the REMIC Residual Certificates; and (b)
against OIC for federal and state income taxes arising out of its ownership of
certain of the Residual REMIC Certificates.
(125) OIC means Oakwood Investment Corporation.
(126) OLD COMMON STOCK means the pre-confirmation common
stock of, or other equity interest in, however derivative, Oakwood and
outstanding or held in treasury as of the Record Date.
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(127) OMI means Oakwood Mortgage Investors, Inc.
(128) OMI TRUST 1995-B means the trust formed pursuant to
the Series 1995-B Pooling and Servicing Agreement, dated as of October 1, 1995,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as Servicer, and
JPMorgan as successor in interest to the Chase Manhattan Trust Company, National
Association, as trustee.
(129) OMI TRUST 1996-A means the trust formed pursuant to
the Series 1996-A Pooling and Servicing Agreement, dated as of February 1, 1996,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as Servicer, and
JPMorgan as successor in interest to the Chase Manhattan Trust Company, National
Association, as trustee.
(130) OMI TRUST 1996-B means the trust formed pursuant to
the Series 1996-B Pooling and Servicing Agreement, dated as of July 1, 1996, as
amended September 28, 2001, and incorporating the Standard Terms to Pooling and
Servicing Agreement, November 1995 Edition, among OMI, OAC, as Servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(131) OMI TRUST 1996-C means the trust formed pursuant to
the Series 1996-C Pooling and Servicing Agreement, dated as of October 1, 1995,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as Servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(132) OMI TRUST 1997-A means the trust formed pursuant to
the Series 1997-A Pooling and Servicing Agreement, dated as of February 1, 1997,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(133) OMI TRUST 1997-B means the trust formed pursuant to
the Series 1997-B Pooling and Servicing Agreement, dated as of May 1, 1997, as
amended September 28, 2001, and incorporating the Standard Terms to Pooling and
Servicing Agreement, November 1995 Edition, among OMI, OAC, as servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(134) OMI TRUST 1997-C means the trust formed pursuant to
the Series 1997-C Pooling and Servicing Agreement, dated as of August 1, 1997,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(135) OMI TRUST 1997-D means the trust formed pursuant to
the Series 1997-D Pooling and Servicing Agreement, dated as of November 1, 1997,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as servicer, and
JPMorgan as successor in interest to PNC, as trustee.
15
(136) OMI TRUST 1998-A means the trust formed pursuant to
the Series 1998-A Pooling and Servicing Agreement, dated as of February 1, 1998,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, November 1995 Edition, among OMI, OAC, as Servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(137) OMI TRUST 1998-B means the trust formed pursuant to
the Series 1998-B Pooling and Servicing Agreement, dated as of May 1, 1998, as
amended December 11, 2000 and September 28, 2001, and incorporating the Standard
Terms to Pooling and Servicing Agreement, November 1995 Edition, among OMI, OAC,
as servicer, and JPMorgan as successor in interest to PNC, as trustee.
(138) OMI TRUST 1998-C means the trust formed pursuant to
the Series 1998-C Pooling and Servicing Agreement, dated as of August 1, 1998,
as amended December 12, 2000, September 28, 2001 and August 10, 2001, and
incorporating the Standard Terms to Pooling and Servicing Agreement, July 1998
Edition, among OMI, OAC, as servicer, and JPMorgan as successor in interest to
PNC, as trustee.
(139) OMI TRUST 1998-D means the trust formed pursuant to
the Series 1998-D Pooling and Servicing Agreement, dated as of October 1, 1998,
as amended April 29, 1999 and September 28, 2001, and incorporating the Standard
Terms to Pooling and Servicing Agreement, July 1998 Edition, among OMI, OAC, as
servicer, and JPMorgan as successor in interest to PNC, as trustee.
(140) OMI TRUST 1999-A means the trust formed pursuant to
the Series 1999-A Pooling and Servicing Agreement, dated as of January 1, 1999,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, July 1998 Edition, among OMI, OAC, as servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(141) OMI TRUST 1999-B means the trust formed pursuant to
the Series 1999-B Pooling and Servicing Agreement, dated as of April 1, 1999, as
amended September 28, 2001, and incorporating the Standard Terms to Pooling and
Servicing Agreement, July 1998 Edition, among OMI, OAC, as servicer, and
JPMorgan as successor in interest to PNC, as trustee.
(142) OMI TRUST 1999-C means the trust formed pursuant to
the Series 1999-C Pooling and Servicing Agreement, dated as of June 1, 1999, as
amended November 1, 2000, December 12, 2000, September 28, 2001 and August 10,
2001, and incorporating the Standard Terms to Pooling and Servicing Agreement,
May 1999 Edition, among OMI, OAC, as servicer, and JPMorgan as successor in
interest to PNC, as trustee.
(143) OMI TRUST 1999-D means the trust formed pursuant to
the Series 1999-D Pooling and Servicing Agreement, dated as of August 1, 1999,
as amended December 12, 2000, September 28, 2001 and August 10, 2001, and
incorporating the Standard Terms to Pooling and Servicing Agreement, May 1999
Edition, among OMI, OAC, as servicer, and JPMorgan as successor in interest to
PNC, as trustee.
(144) OMI TRUST 1999-E means the trust formed pursuant to
the Series 1999-E Pooling and Servicing Agreement, dated as of November 1, 1999,
as amended December 11,
16
2000, September 28, 2001 and August 10, 2001, and incorporating the Standard
Terms to Pooling and Servicing Agreement, May 1999 Edition, among OMI, OAC, as
servicer, and JPMorgan as successor in interest to PNC, as trustee.
(145) OMI TRUST 2000-A means the trust formed pursuant to
the Series 2000-A Pooling and Servicing Agreement, dated as of March 1, 2000, as
amended December 11, 2000, September 28, 2001 and August 10, 2001, and
incorporating the Standard Terms to Pooling and Servicing Agreement, May 1999
Edition, among OMI, OAC, as servicer, and JPMorgan as successor in interest to
PNC, as trustee.
(146) OMI TRUST 2000-B means the trust formed pursuant to
the Series 2000-B Pooling and Servicing Agreement, dated as of June 1, 2000, as
amended December 11, 2000, September 28, 2001 and August 10, 2001, and
incorporating the Standard Terms to Pooling and Servicing Agreement, May 1999
Edition, among OMI, OAC, as servicer, and JPMorgan as successor in interest to
PNC, as trustee.
(147) OMI TRUST 2000-C means the trust formed pursuant to
the Series 2000-C Pooling and Servicing Agreement, dated as of September 1,
2000, as amended December 1, 2000, December 14, 2000 and September 28, 2001, and
incorporating the Standard Terms to Pooling and Servicing Agreement, May 1999
Edition, among OMI, OAC, as Servicer, and Wells Fargo Bank Minnesota, National
Association, as trustee.
(148) OMI TRUST 2000-D means the trust formed pursuant to
the Series 2000-D Pooling and Servicing Agreement, dated as of December 1, 2000,
as amended September 28, 2001, and incorporating the Standard Terms to Pooling
and Servicing Agreement, May 1999 Edition, among OMI, OAC, as Servicer, and
Wells Fargo Bank Minnesota, National Association, as trustee.
(149) OMI TRUST 2001-B means the trust formed pursuant to
the Series 2001-B Pooling and Servicing Agreement, dated as of February 1, 2001,
as amended September 28, 2001 and August 10, 2001, and incorporating the
Standard Terms to Pooling and Servicing Agreement, February 2001 Edition, among
OMI, OAC, as servicer, and JPMorgan as successor in interest to PNC, as trustee.
(150) OMI TRUST 2001-C means the trust formed pursuant to
the Series 2001-C Pooling and Servicing Agreement, dated as of May 1, 2001, as
amended October 2, 2001, August 10, 2001 and December 12, 2001, and
incorporating the Standard Terms to Pooling and Servicing Agreement, May 2001
Edition, among OMI, OAC, as servicer, and JPMorgan as successor in interest to
PNC, as trustee.
(151) OMI TRUST 2001-D means the trust formed pursuant to
the Series 2001-D Pooling and Servicing Agreement, dated as of August 1, 2001,
as amended December 12, 2001 and January 10, 2002, and incorporating the
Standard Terms to Pooling and Servicing Agreement, May 2001 Edition, among OMI,
OAC, as servicer, and JPMorgan as successor in interest to PNC, as trustee.
(152) OMI TRUST 2001-E means the trust formed pursuant to
the Series 2001-E Pooling and Servicing Agreement, dated as of November 1, 2001,
and incorporating the Standard
17
Terms to Pooling and Servicing Agreement, September 2001 Edition, among OMI,
OAC, as servicer, and JPMorgan as successor in interest to PNC, as trustee.
(153) OMI TRUST 2002-A means the trust formed pursuant to
the Series 2002-A Pooling and Servicing Agreement, dated as of February 1, 2002,
and incorporating the Standard Terms to Pooling and Servicing Agreement,
September 2001 Edition, among OMI, OAC, as servicer, and JPMorgan as successor
in interest to PNC, as trustee.
(154) OMI TRUST 2002-B means the trust formed pursuant to
the Series 2002-B Pooling and Servicing Agreement, dated as of May 1, 2002, and
incorporating the Standard Terms to Pooling and Servicing Agreement, September
2001 Edition, among OMI, OAC, as servicer, and JPMorgan as successor in interest
to PNC, as trustee.
(155) OMI TRUST 2002-C means the trust formed pursuant to
the Series 2002-C Pooling and Servicing Agreement, dated as of August 1, 2002,
and incorporating the Standard Terms to Pooling and Servicing Agreement,
September 2001 Edition, among OMI, OAC, as servicer, and JPMorgan as successor
in interest to PNC, as trustee.
(156) OSHC means Oakwood Servicing Holdings Co., LLC.
(157) OTHER SECURED AND SETOFF CLAIM means any Secured
Claim that is not: (a) a DIP Claim; (b) the 1997 Bonds Secured Claim; (c) the
1998 Bonds Secured Claim; (d) the Auto Secured Claim; (e) the Carolina Secured
Claim; (f) the First American Secured Claim; (g) the Foothill Secured Claim; (h)
the Thomas Secured Claim; (i) the U.S. Bank Secured Claim; or (j) a Secured Tax
Claim.
(158) OTHER UNSECURED CLAIMS means an Unsecured Claim that
is not: (a) a Convenience Claim; (b) a REMIC Guarantee Claim; (c) a Senior Notes
Claim; (d) a Junior Notes Claim; (e) a Litigation Claim; (f) an Administrative
Claim; (g) a Fee Claim; (h) a Priority Tax Claim; or (i) a Priority Non-Tax
Claim.
(159) PERSON shall have the meaning ascribed to such term
in section 101(41) of the Bankruptcy Code.
(160) PETITION DATE means November 15, 2002.
(161) PLAN means this Plan of Reorganization, dated as of
the date set forth on the first page hereof, for each of the Debtors, together
with any amendments or modifications hereto as the Debtors may file hereafter in
accordance with the terms of the Plan.
(162) PLAN SUPPLEMENT means the Bankruptcy Court filing
specified in Section 11.7 of the Plan, the content of which is incorporated
herein by reference.
(163) PNC means PNC Bank National Association.
(164) PREPETITION LOAN AGREEMENT means that Loan and
Security Agreement dated January 22, 2002 among the Debtors and Foothill, as
amended pursuant to the First
18
Amendment to Loan Agreement dated July 2002 and the Second Amendment to Loan
Agreement dated July 31, 2002.
(165) PRIORITY NON-TAX CLAIM means any Claim entitled to
priority pursuant to section 507(a) of the Bankruptcy Code that is not: (i) an
Administrative Claim; (ii) a Priority Tax Claim; or (iii) a Fee Claim.
(166) PRIORITY TAX CLAIM means a Claim for taxes entitled
to priority pursuant to section 507(a)(8) of the Bankruptcy Code.
(167) PROOF OF CLAIM means a proof of claim that is timely
filed and in compliance with the Bankruptcy Rules and the Bar Date Order.
(168) PURCHASE AGREEMENT means that certain Asset Purchase
Agreement, dated as of November 24, 2003, by and among the Debtors and certain
non-debtor affiliates and Buyer, as attached as an exhibit to the Disclosure
Statement, pursuant to which the Buyer will purchase the Purchased Business
under the Sale Option.
(169) PURCHASE CONSIDERATION means the consideration to be
paid by the Buyer pursuant to the Purchase Agreement under the Sale Option.
(170) PURCHASED BUSINESS means, under the Sale Option, all
of the Assets to be Transferred to the Buyer on the Effective Date pursuant to
the Purchase Agreement. For the avoidance of doubt, the Purchased Business does
not include the Excluded Assets.
(171) QUARTERLY DISTRIBUTION DATE means the first Business
Day after the end of each quarterly calendar period (i.e., March 31, June 30,
September 30, and December 31 of each calendar year) following the Effective
Date.
(172) RATABLE, RATABLY OR RATABLE SHARE means, at any time,
the proportion that the Face Amount of a Claim in a particular Class or group of
Classes (in the case of Class 4) bears to the aggregate Face Amount of all
Claims (including Disputed Claims but excluding Disallowed Claims) in such Class
or group of Classes (in the case of Class 4), unless the Plan otherwise
provides.
(173) RECORD DATE means the Confirmation Date.
(174) REMIC GUARANTEE CLAIMS mean all of the Unsecured
Claims arising from the B-2 REMIC Guarantees and the Resecuritization Note Put
Option.
(175) REMIC TRUSTEE means JPMorgan in its capacity as
trustee, indenture trustee, successor trustee, securities intermediary,
verification agent, paying agent, as applicable, and Resecuritization Trustee,
for the holders of notes and certificates, including Holders of the B-Piece
REMIC Certificates and the Resecuritization Note, issued by each of the REMIC
Trusts and the Resecuritization Trust and any duly appointed successor or
successors.
(176) REMIC TRUSTS mean the following non-Debtor Real
Estate Mortgage Investment Conduit Securitization Trusts: the OMI Trust 1995-B,
the OMI Trust 1996-A, the
19
OMI Trust 1996-B, the OMI Trust 1996-C, the OMI Trust 1997-A, the OMI Trust
1997-B, the OMI Trust 1997-C, the OMI Trust 1997-D, the OMI Trust 1998-A, the
OMI Trust 1998-B, the OMI Trust 1998-C, the OMI Trust 1998-D, the OMI Trust
1999-A, the OMI Trust 1999-B, the OMI Trust 1999-C, the OMI Trust 1999-D, the
OMI Trust 1999-E, the OMI Trust 2000-A, the OMI Trust 2000-B, the OMI Trust
2000-C, the OMI Trust 2000-D, the OMI Trust 2001-B, the OMI Trust 2001-C, the
OMI Trust 2001-D, the OMI Trust 2001-E, the OMI Trust 2002-A, the OMI Trust
2002-B and the OMI Trust 2002-C.
(177) REORGANIZED SALE DEBTORS means, under the Sale
Option, (a) Reorganized Sale OKWD, (b) the Affiliate Debtors and OSHC as merged
into Reorganized Sale OKWD on or after the Effective Date, (c) OFC and (d) OIC
on and after the Effective Date.
(178) REORGANIZED SALE OKWD means, under the Sale Option,
Oakwood on and after the Effective Date.
(179) REORGANIZED SALE DEBTORS CAPITALIZATION AMOUNT means,
under the Sale Option, those Assets as may be identified in the Plan Supplement
and determined pursuant to an order or orders of the Bankruptcy Court (which may
be the Confirmation Order) to be appropriate to fund the post-Effective Date
operation of the Reorganized Sale Debtor, including the payment of all insurance
premiums and the resolution of Future Claims.
(180) REORGANIZED STAND ALONE DEBTORS means, under the
Stand Alone Option, Reorganized Stand Alone Oakwood and the Affiliate Debtors on
and after the Effective Date as reincorporated or otherwise established.
(181) REORGANIZED STAND ALONE OAKWOOD means, under the
Stand Alone Option, Oakwood on and after the Effective Date as reincorporated or
otherwise established.
(182) RESECURITIZATION NOTE means the Class A note issued
by the Resecuritization Trust secured, in part, by certain B-Piece REMIC
Certificates and X REMIC Certificates issued by the OMI Trust 1998-C, the OMI
Trust 1999-C, the OMI Trust 1999-D, the OMI Trust 1999-E, the OMI Trust 2000-A,
the OMI Trust 2000-B, the OMI Trust 2001-B, the OMI Trust 2001-C, the OMI Trust
2001-D, the OMI Trust 2001-E, the OMI Trust 2002-A and the OMI Trust 2002-B.
(183) RESECURITIZATION NOTE PUT OPTION means Oakwood's
obligation to the holder of the Resecuritization Note to purchase the
Resecuritization Note on each payment date under the Resecuritization Note,
beginning with the payment date occurring in September 2011 and ending with the
payment date occurring in September 2012.
(184) RESECURITIZATION TRUST means the Oakwood Mortgage
Resecuritization Trust 2001 formed pursuant to the Amended and Restated Trust
Agreement, dated as of February 1, 2002, as amended and supplemented by the
Trust Agreement Amendment and Supplement, dated as of March 1, 2002, and the
Trust Agreement Amendment and Supplement, dated as of June 1, 2002, among OMI,
as depositor, OAC, as securities administrator, and the Resecuritization
Trustee.
20
(185) RESECURITIZATION TRUSTEE means JPMorgan in its
capacity as trustee and securities intermediary of the Resecuritization Trust.
(186) RESIDUAL REMIC CERTIFICATES means the Class R REMIC
Certificates representing the residual interests in the REMIC Trusts.
(187) SALE OPTION means the implementation of the Plan
pursuant to Section 6.1 and other attendant provisions of the Plan.
(188) SCHEDULE OF ASSETS AND LIABILITIES means, as amended,
supplemented or modified, a Debtor's schedule of assets and liabilities filed
with the Bankruptcy Court on January 31, 2003 (D.I. 516, 518, 521, 524, 526,
528, 531, 533, 535, 539, 541, 543) pursuant to sections 521(1) and 1106(a)(2) of
the Bankruptcy Code.
(189) SECURED CLAIM means: (a) that portion of a Claim that
is secured by a valid, perfected and enforceable security interest, Lien,
mortgage or other encumbrance, that is not subject to an Avoidance Action, in or
upon any right, title or interest of any of the Debtors in and to property of
the Estates, to the extent of the value of the Holder's interest in such
property as of the relevant determination date or (b) any Claim that is subject
to an offset right pursuant to section 553 of the Bankruptcy Code, to the extent
of the amount subject to a valid setoff, in the case of each of (a) and (b) as
determined by the Bankruptcy Court pursuant to section 506(a) of the Bankruptcy
Code. Such defined term shall not include for voting or distribution purposes
any such Claim that has been or will be paid in connection with the cure of
defaults under an assumed executory contract or unexpired lease under section
365 of the Bankruptcy Code.
(190) SECURED TAX CLAIM means a Claim for taxes to the
extent that it is a Secured Claim under state or federal law, excluding any
Claim that is an Administrative Claim or Priority Tax Claim.
(191) SENIOR NOTES mean the 7.875% Senior Notes in the
aggregate principal amount of $125 million due March 2004 and the 8.125% Senior
Notes in the aggregate principal amount of $175 million due March 2009 pursuant
to an Indenture and First Supplemental Indenture, both dated March 2, 1999.
(192) SENIOR NOTES CLAIM means the Unsecured Claim of the
Senior Notes Indenture Trustee under the Senior Notes Indenture, or the Claim of
any Holder of Senior Notes for the payment of any principal, premium, if any,
and interest owing and unpaid as of the Petition Date in respect of such Senior
Notes.
(193) SENIOR NOTES INDENTURE means the Indenture and First
Supplemental Indenture, both dated March 2, 1999, between the Debtors and Bank
One, N.A., f/k/a The First National Bank of Chicago, with respect to the Senior
Notes, as the same may have been amended from time to time.
(194) SENIOR NOTES INDENTURE TRUSTEE means U.S. Bank Trust,
N.A., as the current indenture trustee under the Senior Notes Indenture, or any
successor indenture trustee(s) to U.S. Bank Trust, N.A. under the Senior Notes
Indenture.
21
(195) SERVICING AGREEMENTS means the servicing agreements
assumed by OAC and assigned to OHSC under section 365 of the Bankruptcy Court as
authorized by Final Orders entered by the Bankruptcy Court (D.I. 369, D.I. 424
and D.I. 425).
(196) SOLICITATION PROCEDURES ORDER means the Order entered
by the Bankruptcy Court establishing procedures with respect to the solicitation
and tabulation of votes to accept or reject the Plan (D.I. 3543).
(197) STAND ALONE OPTION means the implementation of the
Plan pursuant to Section 6.2 and other attendant provisions of the Plan.
(198) STAND ALONE VOTING TRUST means the trust created on
the Effective Date pursuant to the Plan and the Stand Alone Voting Trust
Agreement.
(199) STAND ALONE VOTING TRUST AGREEMENT means that certain
agreement which is to govern the Stand Alone Voting Trust, substantially in the
form set forth in the Plan Supplement.
(200) STAND ALONE VOTING TRUSTEE means the trustees
appointed pursuant to the Plan and the Stand Alone Voting Trust Agreement.
(201) STATEMENT OF FINANCIAL AFFAIRS means, as amended,
supplemented or modified, a Debtor's statement of financial affairs filed with
the Bankruptcy Court on January 31, 2003 (D.I. 515, 517, 520, 522, 525, 527,
530, 532, 534, 537, 540, 542) pursuant to sections 521(1) and 1106(a)(2) of the
Bankruptcy Code.
(202) SUBSERVICING AGREEMENTS means the subservicing
agreements between OSHC and OAC, as amended, approved by Orders of the
Bankruptcy Court (D.I. 369, D.I. 424 and D.I. 425).
(203) THOMAS SECURED CLAIM means that portion of the Claim
of Lecil V. and Tommie Jane Thomas arising under a note dated January 15, 1993,
but only to the extent that it is a Secured Claim secured by property owned by
Debtor HBOS Manufacturing, LP and located at 508 Palmer Road, Rockwell, North
Carolina.
(204) TRANSFER shall have the meaning ascribed to such term
in section 101(54) of the Bankruptcy Code.
(205) U.S. BANK SECURED CLAIM means that portion of the
Claim of U.S. Bank National Association arising under a note dated April 2,
1991, but only to the extent that it is a Secured Claim secured by property
owned by Debtor HBOS Manufacturing, LP and located in Albany, Linn County,
Oregon.
(206) U.S. GOVERNMENT OBLIGATIONS means securities that are
direct obligations of, or obligations guaranteed by, the United States of
America for the timely payment of which obligation or guarantee the full faith
and credit of the United States of America is pledged, or funds consisting
solely of such securities.
22
(207) UNCLAIMED PROPERTY means any Cash or other
distributable property unclaimed for a period of ninety (90) days after it has
been delivered (or attempted to be delivered) in accordance with the Plan to the
Holder entitled thereto in respect of such Holder's Allowed Claim. Unclaimed
Property shall, without limitation, include: (a) checks (and the funds
represented thereby) mailed to a Distribution Address and returned as
undeliverable without a proper forwarding address; (b) funds for uncashed
checks; and (c) checks (and the funds represented thereby) not mailed or
delivered because no Distribution Address to mail or deliver such property was
available, notwithstanding efforts by the Liquidation Trust (under the Sale
Option) or the Reorganized Stand Alone Debtors (under the Stand Alone Option) to
locate such address which were commercially reasonable under the circumstances.
Distributions of cash that otherwise would be payable under the Plan to a Holder
but for Section 9.14 of the Plan that never, collectively, exceed fifty dollars
($50.00) as described in Section 9.14 and for which a request is not made within
the one (1) year deadline shall become Unclaimed Property.
(208) UNIMPAIRED shall have the meaning ascribed to such
term in section 1124 of the Bankruptcy Code.
(209) UNITED STATES TRUSTEE means the Office of the United
States Trustee for the District of Delaware.
(210) UNSECURED CLAIM means any Claim, arising
pre-petition, that is not: (a) an Administrative Claim; (b) a Priority Non-Tax
Claim; (c) a Priority Tax Claim; (d) a Fee Claim; (e) a Secured Claim; (f) an
Intercompany Claim; or (g) an Interest.
(211) WARRANT AGREEMENT means that certain agreement
governing exercise of the New Warrants, in substantially the form set forth in
the Plan Supplement.
(212) X REMIC CERTIFICATES mean those certain Class X
"pass-through" asset-backed securities that have been issued by the OMI Trust
1998-C, the OMI Trust 1999-C, the OMI Trust 1999-D, the OMI Trust 1999-E, the
OMI Trust 2000-A, the OMI Trust 2000-B, the OMI Trust 2001-B, the OMI Trust
2001-C, the OMI Trust 2001-D, the OMI Trust 2001-E, the OMI Trust 2002-A, the
OMI Trust 2002-B and the OMI Trust 2002-C.
1.2 RULES OF INTERPRETATION, COMPUTATION OF TIME AND GOVERNING
LAW.
(a) RULES OF INTERPRETATION.
For purposes of the Plan: (a) whenever from the context it is
appropriate, each term, whether stated in the singular or the plural, shall
include both the singular and the plural; (b) any reference in the Plan to a
contract, instrument, release, indenture or other agreement or document being in
a particular form or on particular terms and conditions means that such document
shall be substantially in such form or substantially on such terms and
conditions; (c) any reference in the Plan to an existing document or an exhibit
filed or to be filed means such document or exhibit, as it may have been or may
be amended, modified or supplemented; (d) if the Plan's description of the terms
of an exhibit is inconsistent with the terms of the exhibit, the terms of the
Plan shall control unless the Purchase Agreement is inconsistent with the Plan,
in which case the Purchase Agreement shall control; (e) unless otherwise
specified, all references in
23
the Plan to articles, sections, clauses and exhibits are references to articles,
sections, clauses and exhibits of or to the Plan; (f) the words "herein" and
"hereto" and other words of similar import refer to this Plan in its entirety
rather than to a particular portion of the Plan; (g) captions and headings to
articles and sections are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation of the Plan; (h) any
reference to an entity as a Holder of a Claim or Interest includes that entity's
successors, assigns and affiliates; (i) the rules of construction set forth in
section 102 of the Bankruptcy Code shall apply to the extent such rules are not
inconsistent with any other provision in this Section; (j) any term used herein
that is not defined herein shall have the meaning ascribed to any such term used
in the Bankruptcy Code and/or the Bankruptcy Rules, if used therein; and (k) any
reference to the "Liquidation Trustee" shall be deemed to include a reference to
the "Liquidation Trust" and any reference to the "Liquidation Trust" shall be
deemed to include a reference to the "Liquidation Trustee" unless the context
otherwise requires.
(b) COMPUTATION OF TIME.
In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
(c) GOVERNING LAW.
Except to the extent that the Bankruptcy Code or Bankruptcy
Rules are applicable, and subject to the provisions of any contract, instrument,
release, indenture or other agreement or document entered into in connection
with the Plan, the rights and obligations arising under the Plan shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without giving effect to the principles of conflicts of law
thereof.
ARTICLE II.
METHOD OF CLASSIFICATION OF CLAIMS AND INTERESTS
AND GENERAL PROVISIONS
2.1 GENERAL RULES OF CLASSIFICATION.
A Claim or Interest shall be deemed classified in a particular
Class only to the extent that the Claim or Interest qualifies within the
description of that Class and shall be deemed classified in a different Class to
the extent that any remainder of such Claim or Interest qualifies within the
description of such different Class. A Claim or Interest is in a particular
Class only to the extent that such Claim or Interest is Allowed in that Class
and has not been paid or otherwise settled prior to the Effective Date.
24
2.2 HOLDERS OF CLAIMS ENTITLED TO VOTE.
Each Holder of an Allowed Claim and each Holder of a Claim
that has been temporarily allowed for voting purposes by Order under Bankruptcy
Rule 3018(a), which Claim is in an Impaired Class of Claims, shall be entitled
to vote separately to accept or reject the Plan as provided in the Solicitation
Procedures Order. Any Unimpaired Class of Claims shall be deemed to have
accepted the Plan. Any Class of Claims or Interests that will not receive or
retain any property on account of such Claims or Interests shall be deemed to
have rejected the Plan.
2.3 ACCEPTANCE BY IMPAIRED CLASSES.
An Impaired Class of Claims shall have accepted the Plan if
all of the necessary conditions of the Bankruptcy Code and Bankruptcy Rules have
been satisfied.
2.4 NON-CONSENSUAL CONFIRMATION.
To the extent necessary, the Debtors hereby request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code. Subject to section 1127 of the Bankruptcy Code, the Debtors
reserve the right to modify the Plan to the extent that confirmation pursuant to
section 1129(b) of the Bankruptcy Code requires modification, provided such
modifications are consistent with Article XI of the Plan.
2.5 ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS AND FEE CLAIMS.
Administrative Claims, Fee Claims, Priority Tax Claims and OFC
and OIC Tax Claims (to the extent that OFC and OIC are included in this Plan)
have not been classified and are excluded from the Classes set forth in Article
IV in accordance with section 1123(a)(1) of the Bankruptcy Code.
2.6 SPECIAL PROVISION REGARDING UNIMPAIRED CLAIMS.
Except as otherwise provided in the Plan, nothing herein shall
affect the rights and defenses, both legal and equitable, of the Liquidation
Trust and the Reorganized Stand Alone Debtors, with respect to any Unimpaired
Claims, including, but not limited to, all rights with respect to legal and
equitable defenses to setoffs or recoupments against Unimpaired Claims and the
right to assert Avoidance Actions against any Holders of an Unimpaired Claim.
2.7 INTENTIONALLY OMITTED.
2.8 BAR DATES FOR ADMINISTRATIVE CLAIMS.
Respecting Administrative Claims subject to the Administrative
Claim Bar Date Order, a Holder of such Administrative Claim must have complied
with the provisions of such order to be eligible to receive distributions under
the Plan on account of such Administrative Claim.
25
To be eligible to receive distributions under the Plan on
account of an Administrative Claim that is not subject to the Administrative
Claim Bar Date Order and that is not a Fee Claim, all requests for payment of
such Administrative Claims must be made by Proof of Administrative Claim filed
with the Claims Agent so as to be received on or before 4:00 p.m. (Eastern Time)
on the date that is the first Business Day after the date that is twenty (20)
days after the Effective Date, unless otherwise agreed to by the Liquidation
Trust (under the Sale Option) or the Reorganized Stand Alone Debtors (under the
Stand Alone Option). Amendments to such Claims shall be governed by the
provisions set forth in Section 10.3 of the Plan.
ANY HOLDER OF AN ADMINISTRATIVE CLAIM THAT DOES NOT ASSERT
SUCH CLAIM IN ACCORDANCE WITH THIS SECTION 2.8, SHALL HAVE ITS CLAIM BE DEEMED
DISALLOWED UNDER THIS PLAN AND BE FOREVER BARRED FROM ASSERTING SUCH CLAIM
AGAINST ANY OF THE DEBTORS, THE REORGANIZED STAND ALONE DEBTORS, THE REORGANIZED
SALE DEBTORS, THE LIQUIDATION TRUST, THE ESTATES OR ANY OF THEIR PROPERTY. ANY
SUCH CLAIM SHALL BE DISCHARGED AND THE HOLDER THEREOF SHALL BE ENJOINED FROM
COMMENCING OR CONTINUING ANY ACTION, EMPLOYMENT OF PROCESS OR ACT TO COLLECT,
OFFSET, RECOUP OR RECOVER SUCH CLAIM.
2.9 BAR DATE FOR FEE CLAIMS.
All final applications for payment of Fee Claims shall be
filed with the Bankruptcy Court and served on or before the first Business Day
that is sixty (60) days after the Effective Date or such other date as otherwise
agreed by the Liquidation Trust (under the Sale Option) or the Reorganization
Stand Alone (under the Stand Alone Option).
ANY HOLDER OF A FEE CLAIM THAT DOES NOT ASSERT SUCH CLAIM IN
ACCORDANCE WITH THIS SECTION 2.9 SHALL HAVE ITS CLAIM BE DEEMED DISALLOWED UNDER
THIS PLAN AND BE FOREVER BARRED FROM ASSERTING SUCH CLAIM AGAINST ANY OF THE
DEBTORS, THE REORGANIZED STAND ALONE DEBTORS, THE REORGANIZED SALE DEBTORS, THE
LIQUIDATION TRUST, THE ESTATES OR ANY OF THEIR PROPERTY. ANY SUCH CLAIM SHALL BE
DISCHARGED AND THE HOLDER THEREOF SHALL BE ENJOINED FROM COMMENCING OR
CONTINUING ANY ACTION, EMPLOYMENT OF PROCESS OR ACT TO COLLECT, OFFSET, RECOUP
OR RECOVER SUCH CLAIM.
ARTICLE III.
UNCLASSIFIED CLAIMS
3.1 ADMINISTRATIVE CLAIMS.
Subject to the terms herein, and unless the Holder of an
Allowed Administrative Claim agrees to receive other, less favorable treatment,
each Holder of an Allowed Administrative Claim shall be paid 100% of the unpaid
allowed amount of such Administrative Claim in Cash on or as soon as reasonably
practicable after the Initial Distribution Date. Notwithstanding the immediately
preceding sentence: (i) under the Stand Alone Option, any Allowed Administrative
Claims for goods sold or services rendered representing liabilities incurred by
the Debtors in the ordinary course of business during the Chapter 11 Cases,
subject to compliance with any applicable bar date, shall be paid in the
ordinary course in accordance with the terms and conditions of any agreements
relating thereto; (ii) Allowed Administrative
26
Claims of the United States Trustee for fees pursuant to section 1930(a)(6) of
title 28 of the United States Code shall be paid in accordance with the
applicable schedule for payment of such fees; and (iii) all Allowed DIP Claims
arising from the Final DIP Agreement shall be paid in accordance with the Final
DIP Agreement and the Final DIP Order.
3.2 PRIORITY TAX CLAIMS.
Subject to the terms herein, and unless the Holder of an
Allowed Priority Tax Claim agrees to receive other, fless favorable treatment,
each Holder of an Allowed Priority Tax Claim shall be paid 100% of the unpaid
amount of such Allowed Priority Tax Claim in Cash on or as soon as reasonably
practicable after the Initial Distribution Date; provided, however, that, under
the Stand Alone Option, the Reorganized Stand Alone Debtors may opt to make
distributions for any Allowed Priority Tax Claim over a period not exceeding six
(6) years after the date of assessment of such Allowed Priority Tax Claim as
provided in section 1129(a)(9)(C) of the Bankruptcy Code. If the Reorganized
Stand Alone Debtors elect this option as to any Allowed Priority Tax Claim, then
the payment of such Allowed Priority Tax Claim shall be made in equal
semi-annual installments with the first installment due on the later of: (i) the
Initial Distribution Date; (ii) 30 calendar days after the date on which an
order allowing such Allowed Priority Tax Claim becomes a Final Order; or (iii)
such other time as may be agreed to by the Holder of such Allowed Priority Tax
Claim and the Reorganized Stand Alone Debtors. Each installment shall include
simple interest on the unpaid portion of such Allowed Priority Tax Claim,
without penalty of any kind, at the statutory rate of interest provided for such
taxes under applicable non-bankruptcy law; provided, however, that the
Reorganized Stand Alone Debtors shall reserve the right to pay any Allowed
Priority Tax Claim, or any remaining balance of such Allowed Tax Claim, in full,
at any time on or after the Effective Date, without premium or penalty. Any
Claim or demand for penalty relating to any Priority Tax Claim (other than a
penalty of the type specified in section 507(a)(8)(G) o the Bankruptcy Code)
shall be Disallowed, and the Holder of an Allowed Priority Tax Claim shall not
assess or attempt to collect such penalty from the Debtors, the Liquidation
Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone Debtors, the
Estates or any of their respective property.
3.3 FEE CLAIMS.
Subject to the terms herein, and unless the Holder of an
Allowed Fee Claim agrees to receive other, less favorable treatment, each Holder
of an Allowed Fee Claim shall receive 100% of the unpaid allowed amount of such
Claim in Cash on or as soon as reasonably practicable after the Initial
Distribution Date.
3.4 OFC AND OIC TAX CLAIMS.
To the extent that OFC and OIC are included under this Plan,
all OFC and OIC Tax Claims shall be Unimpaired and shall continue to be valid
and fully enforceable against Reorganized Sale Debtor after the Effective Date.
27
ARTICLE IV.
CLASSIFICATION, TREATMENT AND VOTING OF CLAIMS AND INTERESTS
4.1 SUMMARY.
The classification of Claims and Interests against the Debtors
pursuant to the Plan is as follows:
CLASS CLAIM STATUS VOTING RIGHTS
- -------- ------------------------------- ---------- ---------------------
Class 1 Priority Non-Tax Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2A Secured Tax Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2B 1997 Bonds Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2C 1998 Bonds Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2D Auto Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2E Carolina Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2F First American Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2G Foothill Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2J Thomas Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2K U.S. Bank Secured Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 2L Other Secured and Setoff Claims Unimpaired Not Entitled to Vote;
Deemed to Accept
Class 3 Convenience Claims Impaired Entitled to Vote
Class 4A Senior Notes Claims Impaired Entitled to Vote
Class 4B Junior Notes Claims Impaired Entitled to Vote
Class 4C REMIC Guarantee Claims Impaired Entitled to Vote
Class 4D Litigation Claims Impaired Entitled to Vote
28
Class 4E Other Unsecured Claims Impaired Entitled to Vote
Class 6A Non-Debtor-Held Interests Impaired Entitled to Vote
4.2 CLASS 1 (PRIORITY NON-TAX CLAIMS).
Classification: Class 1 shall consist of all Priority Non-Tax
Claims.
Treatment: Subject to the terms herein, and unless the Holder
of an Allowed Priority Non-Tax Claim agrees to receive other, less favorable
treatment, each Holder of an Allowed Priority Non-Tax Claim shall be paid 100%
of the unpaid amount of such Allowed Priority Non-Tax Claim in Cash on or as
soon as reasonably practicable after the Initial Distribution Date.
Voting: Class 1 is an Unimpaired Class, and Holders of Class 1
Claims are not entitled to vote.
4.3 CLASS 2A (SECURED TAX CLAIMS).
Classification: Class 2A shall consist of all Secured Tax
Claims, to the extent (i) validly perfected under applicable non-bankruptcy law
prior to the Petition Date or validly perfected after the Petition Date in
accordance with section 546(b) of the Bankruptcy Code and (ii) otherwise
enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, each Holder of an Allowed Secured Tax
Claim shall receive (i) under the Sale Option, 100% of the unpaid amount of such
Allowed Secured Tax Claim in Cash; or (ii) under the Stand Alone Option, at the
option of the Reorganized Stand Alone Debtors: (a) 100% of the Net Proceeds from
the sale of the relevant collateral, up to the unpaid amount of such Allowed
Claim (with such payments to be made, if applicable, from accounts set up by the
Debtors, during the Chapter 11 Cases, in connection with the sale of such
collateral), subject to applicable inter-creditor lien priorities; (c) the
reinstatement of the Claim in accordance with section 1124(2) of the Bankruptcy
Code; (d) the indubitable equivalent of such Claim in accordance with section
1129(b)(2)(A)(iii) of the Bankruptcy Code; (e) such other, less favorable,
treatment as shall be agreed to between the Holder of such Claim and the
Reorganized Stand Alone Debtors; and (f) such other, less favorable, treatment
as is determined by Final Order of the Bankruptcy Court. Such distribution, if
required, shall be made on or as soon as reasonably practicable after the
Initial Distribution Date (subject, if applicable, to the receipt by the
Reorganized Stand Alone Debtors or the Liquidation Trust of the Net Proceeds of
the sale of the relevant collateral).
Voting: Class 2A is an Unimpaired Class, and Holders of Class
2A Claims are not entitled to vote.
29
4.4 CLASS 2B (1997 BONDS SECURED CLAIMS).
Classification: Class 2B shall consist of all 1997 Bonds
Secured Claims, to the extent (i) validly perfected under applicable
non-bankruptcy law prior to the Petition Date or validly perfected after the
Petition Date in accordance with section 546(b) of the Bankruptcy Code and (ii)
otherwise enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, the Holder of the Allowed 1997 Bonds
Secured Claim shall receive (i) under the Sale Option, 100% of the unpaid amount
of such Allowed 1997 Bonds Secured Claim in Cash; or (ii) under the Stand Alone
Option, at the option of the Reorganized Stand Alone Debtors: (a) 100% of the
Net Proceeds from the sale of the relevant collateral, up to the unpaid amount
of such Allowed Claim (with such payments to be made, if applicable, from
accounts set up by the Debtors, during the Chapter 11 Cases, in connection with
the sale of such collateral), subject to applicable inter-creditor Lien
priorities; (c) the reinstatement of the Claim in accordance with section
1124(2) of the Bankruptcy Code; (d) the indubitable equivalent of such Claim in
accordance with section 1129(b)(2)(A)(iii) of the Bankruptcy Code; (e) such
other, less favorable, treatment as shall be agreed to between the Holder of
such Claim and the Reorganized Stand Alone Debtors; and (f) such other, less
favorable, treatment as is determined by Final Order of the Bankruptcy Court.
Such distribution, if required, shall be made on or as soon as reasonably
practicable after the Initial Distribution Date (subject, if applicable, to the
receipt by the Reorganized Stand Alone Debtors or the Liquidation Trust of the
Net Proceeds of the sale of the relevant collateral).
Voting: Class 2B is an Unimpaired Class, and Holders of Class
2B Claims are not entitled to vote.
4.5 CLASS 2C (1998 BONDS SECURED CLAIMS).
Classification: Class 2C shall consist of all 1998 Bonds
Secured Claims, to the extent (i) validly perfected under applicable
non-bankruptcy law prior to the Petition Date or validly perfected after the
Petition Date in accordance with section 546(b) of the Bankruptcy Code and (ii)
otherwise enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, a Holder of an Allowed 1998 Bonds
Secured Claim shall receive (i) under the Sale Option, 100% of the unpaid amount
of such Allowed 1998 Bonds Secured Claim in Cash; or (ii) under the Stand Alone
Option, at the option of the Reorganized Stand Alone Debtors: (a) 100% of the
Net Proceeds from the sale of the relevant collateral, up to the unpaid amount
of such Allowed Claim (with such payments to be made, if applicable, from
accounts set up by the Debtors, during the Chapter 11 Cases, in connection with
the sale of such collateral), subject to applicable inter-creditor Lien
priorities; (c) the reinstatement of the Claim in accordance with the provisions
of section 1124(2) of the Bankruptcy Code; (d) the indubitable equivalent of
such Claim in accordance with section 1129(b)(2)(A)(iii) of the Bankruptcy Code;
(e) such other, less favorable, treatment as shall be agreed to between the
Holder of such Claim and the Reorganized Stand Alone Debtors; and (f) such
other, less favorable, treatment as is determined by Final Order of the
Bankruptcy Court. Such distribution, if required, shall be made
30
on or as soon as reasonably practicable after the Initial Distribution Date
(subject, if applicable, to the receipt by the Reorganized Stand Alone Debtors
or the Liquidation Trust of the Net Proceeds of the sale of the relevant
collateral).
Voting: Class 2C is an Unimpaired Class, and Holders of Class
2C Claims are not entitled to vote.
4.6 CLASS 2D (AUTO SECURED CLAIMS).
Classification: Class 2D shall consist of all Auto Secured
Claims, to the extent (i) validly perfected under applicable non-bankruptcy law
prior to the Petition Date or validly perfected after the Petition Date in
accordance with section 546(b) of the Bankruptcy Code and (ii) otherwise
enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, a Holder of an Allowed Auto Secured
Claim shall receive (i) under the Sale Option, 100% of the unpaid amount of such
Allowed Auto Secured Claim in Cash; or (ii) under the Stand Alone Option, at the
option of the Reorganized Stand Alone Debtors: (a) 100% of the Net Proceeds from
the sale of the relevant collateral, up to the unpaid amount of such Allowed
Claim (with such payments to be made, if applicable, from accounts set up by the
Debtors, during the Chapter 11 Cases, in connection with the sale of such
collateral), subject to applicable inter-creditor Lien priorities; (c) the
reinstatement of the Claim in accordance with the provisions of section 1124(2)
of the Bankruptcy Code; (d) the indubitable equivalent of such Claim in
accordance with section 1129(b)(2)(A)(iii) of the Bankruptcy Code; (e) such
other, less favorable, treatment as shall be agreed to between the Holder of
such Claim and the Reorganized Stand Alone Debtors; and (f) such other, less
favorable, treatment as is determined by Final Order of the Bankruptcy Court.
Such distribution, if required, shall be made on or as soon as reasonably
practicable after the Initial Distribution Date (subject, if applicable, to the
receipt by the Reorganized Stand Alone Debtors or the Liquidation Trust of the
Net Proceeds of the sale of the relevant collateral).
Voting: Class 2D is an Unimpaired Class, and Holders of Class
2D Claims are not entitled to vote.
4.7 CLASS 2E (CAROLINA SECURED CLAIMS).
Classification: Class 2E shall consist of all Carolina Secured
Claims, to the extent (i) validly perfected under applicable non-bankruptcy law
prior to the Petition Date or validly perfected after the Petition Date in
accordance with section 546(b) of the Bankruptcy Code and (ii) otherwise
enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, a Holder of an Allowed Carolina
Secured Claim shall receive (i) under the Sale Option, 100% of the unpaid amount
of such Allowed Carolina Secured Claim in Cash; or (ii) under the Stand Alone
Option, at the option of the Reorganized Stand Alone Debtors: (a) 100% of the
Net Proceeds from the sale of the relevant collateral, up to the unpaid amount
of such Allowed Claim (with such payments to be made, if applicable, from
accounts set
31
up by the Debtors, during the Chapter 11 Cases, in connection with the sale of
such collateral), subject to applicable inter-creditor Lien priorities; (c) the
reinstatement of the Claim in accordance with the provisions of section 1124(2)
of the Bankruptcy Code; (d) the indubitable equivalent of such Claim in
accordance with section 1129(b)(2)(A)(iii) of the Bankruptcy Code; (e) such
other, less favorable, treatment as shall be agreed to between the Holder of
such Claim and the Reorganized Stand Alone Debtors; and (f) such other, less
favorable, treatment as is determined by Final Order of the Bankruptcy Court.
Such distribution, if required, shall be made on or as soon as reasonably
practicable after the Initial Distribution Date (subject, if applicable, to the
receipt by the Reorganized Stand Alone Debtors or the Liquidation Trust of the
Net Proceeds of the sale of the relevant collateral).
Voting: Class 2E is an Unimpaired Class, and Holders of Class
2E Claims are not entitled to vote.
4.8 CLASS 2F (FIRST AMERICAN SECURED CLAIMS).
Classification: Class 2F shall consist of all First American
Secured Claims, to the extent (i) validly perfected under applicable
non-bankruptcy law prior to the Petition Date or validly perfected after the
Petition Date in accordance with section 546(b) of the Bankruptcy Code and (ii)
otherwise enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, the Holder of the Allowed First
American Secured Claim shall receive (i) under the Sale Option, 100% of the
unpaid amount of such Allowed First American Secured Claim in Cash; or (ii)
under the Stand Alone Option, at the option of the Reorganized Stand Alone
Debtors: (a) 100% of the Net Proceeds from the sale of the relevant collateral,
up to the unpaid amount of such Allowed Claim (with such payments to be made, if
applicable, from accounts set up by the Debtors, during the Chapter 11 Cases, in
connection with the sale of such collateral), subject to applicable
inter-creditor Lien priorities; (c) the reinstatement of the Claim in accordance
with provisions of section 1124(2) of the Bankruptcy Code; (d) the indubitable
equivalent of such Claim in accordance with section 1129(b)(2)(A)(iii) of the
Bankruptcy Code; (e) such other, less favorable, treatment as shall be agreed to
between the Holder of such Claim and the Reorganized Stand Alone Debtors; and
(f) such other, less favorable, treatment as is determined by Final Order of the
Bankruptcy Court. Such distribution, if required, shall be made on or as soon as
reasonably practicable after the Initial Distribution Date (subject, if
applicable, to the receipt by the Reorganized Stand Alone Debtors or the
Liquidation Trust of the Net Proceeds of the sale of the relevant collateral).
Voting: Class 2F is an Unimpaired Class, and Holders of the
Class 2F Claims are not entitled to vote.
4.9 CLASS 2G (FOOTHILL SECURED CLAIMS).
Classification: Class 2G shall consist of all Foothill Secured
Claims, to the extent (i) validly perfected under applicable non-bankruptcy law
prior to the Petition Date or validly perfected after the Petition Date in
accordance with section 546(b) of the Bankruptcy Code and (ii) otherwise
enforceable against the Debtors' Estates or the property thereof.
32
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, a Holder of an Allowed Foothill
Secured Claim shall receive (a) under the Sale Option, 100% of the unpaid amount
of such Allowed Claim in accordance with section 5.03 of the Purchase Agreement;
or (ii) under the Stand Alone Option, at the option of the Reorganized Stand
Alone Debtors: (b) the reinstatement of the Claim in accordance with the
provisions of section 1124(2) of the Bankruptcy Code; (c) the indubitable
equivalent of such Claim in accordance with section 1129(b)(2)(A)(iii) of the
Bankruptcy Code; (d) such other, less favorable, treatment as shall be agreed to
between the Holder of such Claim and the Reorganized Stand Alone Debtors; and
(e) such other, less favorable, treatment as is determined by Final Order of the
Bankruptcy Court. Such distribution, if required, shall be made on or as soon as
reasonably practicable after the Initial Distribution Date.
Voting: Class 2G is an Unimpaired Class, and Holders of Class
2G Claims are not entitled to vote.
4.10 INTENTIONALLY OMITTED.
4.11 INTENTIONALLY OMITTED.
4.12 CLASS 2J (THOMAS SECURED CLAIMS).
Classification: Class 2J shall consist of all Thomas Secured
Claims, to the extent (i) validly perfected under applicable non-bankruptcy law
prior to the Petition Date or validly perfected after the Petition Date in
accordance with section 546(b) of the Bankruptcy Code and (ii) otherwise
enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, a Holder of an Allowed Thomas Secured
Claim shall receive (i) under the Sale Option, 100% of the unpaid amount of such
Allowed Thomas Secured Claim in Cash; or (ii) under the Stand Alone Option, at
the option of the Reorganized Stand Alone Debtors: (a) 100% of the Net Proceeds
from the sale of the relevant collateral, up to the unpaid amount of such
Allowed Claim (with such payments to be made, if applicable, from accounts set
up by the Debtors, during the Chapter 11 Cases, in connection with the sale of
such collateral), subject to applicable inter-creditor Lien priorities; (c) the
reinstatement of the Claim in accordance with the provisions of section 1124(2)
of the Bankruptcy Code; (d) the indubitable equivalent of such Claim in
accordance with section 1129(b)(2)(A)(iii) of the Bankruptcy Code; (e) such
other, less favorable, treatment as shall be agreed to between the Holder of
such Claim and the Reorganized Stand Alone Debtors; and (f) such other, less
favorable, treatment as is determined by Final Order of the Bankruptcy Court.
Such distribution, if required, shall be made on or as soon as reasonably
practicable upon the Initial Distribution Date (subject, if applicable, to the
receipt by the Reorganized Stand Alone Debtors or the Liquidation Trust of the
Net Proceeds of the sale of the relevant collateral).
Voting: Class 2J is an Unimpaired Class, and Holders of Class
2J Claims are not entitled to vote.
33
4.13 CLASS 2K (U.S. BANK SECURED CLAIMS).
Classification: Class 2K shall consist of all U.S. Bank
Secured Claims, to the extent (i) validly perfected under applicable
non-bankruptcy law prior to the Petition Date or validly perfected after the
Petition Date in accordance with section 546(b) of the Bankruptcy Code and (ii)
otherwise enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, a Holder of an Allowed U.S. Bank
Secured Claim shall receive (i) under the Sale Option, 100% of the unpaid amount
of such Allowed U.S. Bank Secured Claim in Cash; or (ii) under the Stand Alone
Option, at the option of the Reorganized Stand Alone Debtors: (a) 100% of the
Net Proceeds from the sale of the relevant collateral, up to the unpaid amount
of such Allowed Claim (with such payments to be made, if applicable, from
accounts set up by the Debtors, during the Chapter 11 Cases, in connection with
the sale of such collateral), subject to applicable inter-creditor Lien
priorities; (c) the reinstatement of the Claim in accordance with the provisions
of section 1124(2) of the Bankruptcy Code; (d) the indubitable equivalent of
such Claim in accordance with section 1129(b)(2)(A)(iii) of the Bankruptcy Code;
(e) such other, less favorable, treatment as shall be agreed to between the
Holder of such Claim and the Reorganized Stand Alone Debtors; and (f) such
other, less favorable, treatment as is determined by Final Order of the
Bankruptcy Court. Such distribution, if required, shall be made on or as soon as
reasonably practicable after the Initial Distribution Date (subject, if
applicable, to the receipt by the Reorganized Stand Alone Debtors or the
Liquidation Trust of the Net Proceeds of the sale of the relevant collateral).
Voting: Class 2K is an Unimpaired Class, and Holders of Class
2K Claims are not entitled to vote.
4.14 CLASS 2L (OTHER SECURED AND SETOFF CLAIMS).
Classification: Class 2L shall consist of all Other Secured
and Setoff Claims, to the extent (i) validly perfected under applicable
non-bankruptcy law prior to the Petition Date or validly perfected after the
Petition Date in accordance with section 546(b) of the Bankruptcy Code and (ii)
otherwise enforceable against the Debtors' Estates or the property thereof.
Treatment: Subject to the provisions of sections 502(b)(3) and
506(d) of the Bankruptcy Code and herein, each Holder of an Allowed Other
Secured and Setoff Claim shall receive (i) under the Sale Option, 100% of the
unpaid amount of such Allowed Other Secured and Setoff Claim in Cash; or (ii)
under the Stand Alone Option, at the option of the Reorganized Stand Alone
Debtors: (a) 100% of the Net Proceeds from the sale of the relevant collateral,
up to the unpaid amount of such Allowed Claim (with such payments to be made, if
applicable, from accounts set up by the Debtors, during the Chapter 11 Cases, in
connection with the sale of such collateral), subject to applicable
inter-creditor Lien priorities; (c) the reinstatement of the Claim in accordance
with the provisions of section 1124(2) of the Bankruptcy Code; (d) the
indubitable equivalent of such Claim in accordance with section
1129(b)(2)(A)(iii) of the Bankruptcy Code; (e) such other, less favorable,
treatment as shall be agreed to between the Holder of such Claim and the
Reorganized Stand Alone Debtors; and (f) such other, less favorable, treatment
as is determined by Final Order of the Bankruptcy Court. Such distribution, if
required, shall be made
34
on or as soon as reasonably practicable after the Initial Distribution Date
(subject, if applicable, to the receipt by the Reorganized Stand Alone Debtors
or the Liquidation Trust of the Net Proceeds of the sale of the relevant
collateral). To the extent a Claim is partially an Allowed Other Secured and
Setoff Claim based on an offset right and partially an Allowed Claim of another
type, such Other Secured and Setoff Claim shall be deemed to have been (x)
setoff only to the extent of the allowed amount of the allowed, liquidated,
nondisputed, noncontingent claim owing to the Debtors, Liquidation Trust, the
Reorganized Sale Debtors or the Reorganized Stand Alone Debtors and (y) a Claim
classified in another relevant Class for any excess of such Claim over the
amount so set off. If a Claim is a fully Secured Claim based on an offset right,
the allowance of such Claim shall not affect any obligations or liabilities due
and payable (at such time) to the Debtors, Liquidation Trust, the Reorganized
Sale Debtors or the Reorganized Stand Alone Debtors that are in an amount in
excess of the amount validly offset and the payment, in full and in cash, of all
amounts due and owing as of the Effective Date to the Debtors, Liquidation
Trust, the Reorganized Sale Debtors or the Reorganized Stand Alone Debtors and
the turnover of any property of the Debtors, Liquidation Trust, the Reorganized
Sale Debtors or the Reorganized Stand Alone Debtors held by such claimant on
account of any unliquidated, disputed or contingent right of setoff shall be a
precondition of the allowance of such Other Secured and Setoff Claim.
Voting: Class 2L is an Unimpaired Class, and Holders of Class
2L Claims are not entitled to vote.
4.15 CLASS 3 (CONVENIENCE CLAIMS).
Classification: Class 3 shall consist of all Convenience
Claims.
Treatment: Subject to the terms herein and unless the Holder
of an Allowed Class 3 Claim makes a Convenience Class Opt-Out Election or agrees
to receive other, less favorable treatment, a Holder of an Allowed Claim in this
Class, including Holders of Other Unsecured Claims making a Convenience Class
Opt-In Election, shall receive, in full satisfaction, settlement, release, and
discharge of and in exchange for such Claim, 25% of the unpaid amount of such
Allowed Class 3 Claim in Cash on or as soon as reasonably practicable after the
Initial Distribution Date.
Voting: Class 3 is an Impaired Class, and Holders of Class 3
Claims are entitled to vote. The Convenience Class Election must be made at the
time of balloting for voting to accept or reject the Plan and clearly indicated
on the Holder's Ballot and any such election for treatment as a Convenience
Claim through a Convenience Class Opt-In Election shall count as a vote for the
Plan; provided, however, that, if any Claim that is otherwise eligible for the
Convenience Class Election is a Disputed Claim at the time of balloting, the
Convenience Class Election may be made in a Final Order allowing such Claim.
Once a Convenience Class Election has been made with respect to a Claim, such
election shall be irrevocable; provided, however, that a Convenience Class
Election can be changed or made upon the written consent of the Debtors, prior
to the Effective Date, and the Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option), after the
Effective Date. Whether a Holder of a Claim has properly made a Convenience
Class Election shall have no effect on whether such Claim is or may become a
Disputed Claim or an Allowed Claim.
35
4.16 CLASS 4A (SENIOR NOTES CLAIMS).
Classification: Class 4A shall consist of all Senior Notes
Claims.
Treatment: Subject to the terms herein and unless the Holder
of an Allowed Class 4A Claim who is the beneficial holder of such Class 4A Claim
agrees to receive other, less favorable treatment, such Holder of an Allowed
Claim in this Class shall receive, in full satisfaction, settlement, release,
and discharge of and in exchange for such Claim: (i) under both the Sale Option
and the Stand Alone Option, a beneficial interest in the Liquidation Trust in a
proportion Ratable to other Allowed Claims in Class 4A, Class 4B, Class 4C,
Class 4D and Class 4E; and (ii) under the Stand Alone Option, a portion of the
10,000,000 shares of New Common Stock to be issued pursuant to the Plan, in an
amount that is Ratable to other Allowed Claims in Class 4A, Class 4B, Class 4C,
Class 4D and Class 4E. Such distributions, shall be made on or as soon as
reasonably practicable after the Initial Distribution Date, subject to the
establishment of appropriate reserves for Disputed Claims in accordance with the
provisions of the Plan, including reserves of New Common Stock held by the Stand
Alone Voting Trust.
Voting: Class 4A is an Impaired Class, and Holders of Allowed
Class 4A Claims who are the beneficial holders of such Class 4A Claims are
entitled to vote.
4.17 CLASS 4B (JUNIOR NOTES CLAIMS).
Classification: Class 4B shall consist of all Junior Notes
Claims.
Treatment: Subject to the terms herein and unless a Holder of
an Allowed Class 4B Claim who is the beneficial holder of such Class 4B Claim
agrees to receive other, less favorable treatment, such Holder of an Allowed
Claim in this Class shall receive, in full satisfaction, settlement, release,
and discharge of and in exchange for such Claim: (i) under both the Sale Option
and the Stand Alone Option, a beneficial interest in the Liquidation Trust in a
proportion Ratable to other Allowed Claims in Class 4A, Class 4B, Class 4C,
Class 4D and Class 4E; and (ii) under the Stand Alone Option, a portion of the
10,000,000 shares of New Common Stock to be issued pursuant to the Plan, in an
amount that is Ratable to other Allowed Claims in Class 4A, Class 4B, Class 4C,
Class 4D and Class 4E. Such distributions, shall be made on or as soon as
reasonably practicable after the Initial Distribution Date, subject to the
establishment of appropriate reserves for Disputed Claims in accordance with the
provisions of the Plan, including reserves of New Common Stock held by the Stand
Alone Voting Trust.
Voting: Class 4B is an Impaired Class, and Holders of Allowed
Class 4B Claims who are the beneficial holders of such Class 4B Claims are
entitled to vote.
4.18 CLASS 4C (REMIC GUARANTEE CLAIMS).
Classification: Class 4C shall consist of all REMIC Guarantee
Claims.
Treatment: Subject to the terms herein and unless a Holder of
an Allowed Class 4C Claim agrees to receive other, less favorable treatment,
such Holder of an Allowed Claim in this Class shall receive, in full
satisfaction, settlement, release, and discharge of and in exchange
36
for such Claim: (i) under both the Sale Option and the Stand Alone Option, a
beneficial interest in the Liquidation Trust in a proportion Ratable to other
Allowed Claims in Class 4A, Class 4B, Class 4C, Class 4D and Class 4E; and (ii)
under the Stand Alone Option, a portion of the 10,000,000 shares of New Common
Stock to be issued pursuant to the Plan, in an amount that is Ratable to other
Allowed Claims in Class 4A, Class 4B, Class 4C, Class 4D and Class 4E. Such
distributions, shall be made on or as soon as reasonably practicable after the
Initial Distribution Date, subject to the establishment of appropriate reserves
for Disputed Claims in accordance with the provisions of the Plan, including
reserves of New Common Stock held by the Stand Alone Voting Trust. This
treatment shall not prohibit the surrender of REMIC Certificates or interests
therein to the Liquidation Trust (under the Sale Option) or the Reorganized Sale
Debtors (under the Stand Alone Option) in connection with the resolution of
Disputed Class 4C Claims.
Voting: Class 4C is an Impaired Class, and Holders of Allowed
Class 4C Claims who are the beneficial holders of such Class 4C Claims are
entitled to vote.
4.19 CLASS 4D (LITIGATION CLAIMS).
Classification: Class 4D shall consist of all Litigation
Claims.
Treatment: Subject to the terms herein and unless a Holder of
an Allowed Class 4D Claim agrees to receive other, less favorable treatment,
such Holder of an Allowed Claim in this Class shall receive, in full
satisfaction, settlement, release, and discharge of and in exchange for such
Claim: (i) under both the Sale Option and the Stand Alone Option, a beneficial
interest in the Liquidation Trust in a proportion Ratable to other Allowed
Claims in Class 4A, Class 4B, Class 4C, Class 4D and Class 4E; and (ii) under
the Stand Alone Option, a portion of the 10,000,000 shares of New Common Stock
to be issued pursuant to the Plan, in an amount that is Ratable to other Allowed
Claims in Class 4A, Class 4B, Class 4C, Class 4D and Class 4E. Such
distributions, shall be made on or as soon as reasonably practicable after the
Initial Distribution Date, subject to the establishment of appropriate reserves
for Disputed Claims in accordance with the provisions of the Plan, including
reserves of New Common Stock held by the Stand Alone Voting Trust.
Voting: Class 4D is an Impaired Class, and Holders of Allowed
Class 4D Claims are entitled to vote.
4.20 CLASS 4E (OTHER UNSECURED CLAIMS).
Classification: Class 4E shall consist of all Other Unsecured
Claims.
Treatment: Subject to the terms herein and unless a Holder of
an Allowed Class 4E Claim makes a Convenience Class Opt-In Election or agrees to
receive other, less favorable treatment, such Holder of an Allowed Claim in this
Class shall receive, in full satisfaction, settlement, release, and discharge of
and in exchange for such Claim: (i) under both the Sale Option and the Stand
Alone Option, a beneficial interest in the Liquidation Trust in a proportion
Ratable to other Allowed Claims in Class 4A, Class 4B, Class 4C, Class 4D and
Class 4E; and (ii) under the Stand Alone Option, a portion of the 10,000,000
shares of New Common Stock to
37
be issued pursuant to the Plan, in an amount that is Ratable to other Allowed
Claims in Class 4A, Class 4B, Class 4C, Class 4D and Class 4E. Such
distributions, shall be made on or as soon as reasonably practicable after the
Initial Distribution Date, subject to the establishment of appropriate reserves
for Disputed Claims in accordance with the provisions of the Plan, including
reserves of New Common Stock held by the Stand Alone Voting Trust.
Voting: Class 4E is an Impaired Class, and Holders of Allowed
Class 4E Claims are entitled to vote.
4.21 INTENTIONALLY OMITTED.
4.22 CLASS 6A (NON-DEBTOR-HELD INTERESTS).
Classification: Class 6 shall consist of all Non-Debtor-Held
Interests.
Treatment: Subject to the terms herein and unless the Holder
of an Allowed Class 6A Interest agrees to receive other, less favorable
treatment, such Holder of an Allowed Interest in this Class shall receive, in
full satisfaction, settlement, release, and discharge of and in exchange for
such Interest: (i) under the Sale Option, retention of its Interest in Oakwood;
or (ii) under the Stand Alone Option, a portion of the New Warrants to be issued
pursuant to the Plan, in an amount that is Ratable to other Allowed Interests in
Class 6A. Such distributions shall be made on or as soon as reasonably
practicable upon the Initial Distribution Date, subject to the establishment of
appropriate reserves under the Stand Alone Option for Disputed Interests in
accordance with the provisions of the Plan; provided, however, that no
distribution shall be made to Holders of Allowed Class 6A Interests if any of
Class 4A, Class 4B, Class 4C, Class 4D or Class 4E does not accept the Plan.
Voting: Class 6A is an Impaired Class, and all Holders of
Allowed Class 6A Claims are entitled to vote.
4.23 INTENTIONALLY OMITTED.
ARTICLE V.
CONDITIONS PRECEDENT
5.1 CONDITIONS TO CONFIRMATION.
(a) UNDER THE SALE OPTION.
Unless this condition is waived in accordance with the Plan,
the Confirmation Order and the Plan Supplement must be in form and substance
reasonably acceptable to the Debtors, the Creditors' Committee, the Buyer and
Berkshire, and the Confirmation Order shall:
(i) order, find, and decree that the
Purchase Agreement and all other documents
necessary to consummate the sale of the
Purchased Business to the Buyer, including
the documents
38
substantially in the form set forth in the
Plan Supplement, are approved in all
respects and that all parties thereto are
authorized and directed to perform all of
their obligations thereunder;
(ii) order, find, and decree that the
sale of the Purchased Business to the Buyer
pursuant to the Plan and the Purchase
Agreement, including, without limitation,
OSHC's rejection of the Subservicing
Agreements, OSHC's assumption of the
Servicing Agreements, and OSHC's assignment
of the Servicing Agreements to Buyer (but
only if such Subservicing Agreements and
Servicing Agreement are not already the
subjects of a separate order or orders of
the Bankruptcy Court): (a) is in the best
interests of all of the Debtors'
constituencies, (b) maximizes the value of
the Debtors' business enterprises, (c) is
approved pursuant to Bankruptcy Code
sections 105, 363, 365, 1123, and 1129, and
(d) that the Buyer has acted in good faith
for the purposes of Bankruptcy Code sections
363(m) and 365;
(iii) order, find and decree that the
Confirmation Order shall supersede any
orders of the Court issued prior to the
Confirmation Date to the extent that those
prior orders may be inconsistent with the
Confirmation Order;
(iv) order and decree that the Estates
of the Debtors shall be substantively
consolidated but only to the extent set
forth in the Plan;
(v) authorize the implementation of the
Plan in accordance with its terms;
(vi) provide that any transfers effected
or mortgages or other security documents
entered into or to be effected or entered
into under the Plan shall be and are exempt
from any state, city, or other municipality
transfer taxes, mortgage recording taxes,
and any other stamp or similar taxes
pursuant to Bankruptcy Code section 1146(c);
(vii) approve in all respects the other
settlements, transactions, and agreements to
be effected pursuant to the Plan;
(viii) provide that all executory
contracts or unexpired leases assumed by the
Debtors and assigned during the Chapter 11
Cases or under the Plan shall remain in full
force and effect for the benefit of the
assignee thereof notwithstanding any
provisions in any contract or lease
(including provisions of the kinds described
in Bankruptcy Code section 365(b)(2) and
(f)) that prohibit assignment or transfer
thereof or that enable or require
termination or modification of such contract
or lease upon assignment thereof);
(ix) provide that (A) all executory
contracts and unexpired leases of any Debtor
that are listed in the Purchase Agreement as
39
executory contracts and unexpired leases to
be assumed and assigned thereunder shall be
deemed assumed by the Debtor that is a party
thereto and assigned to the Buyer; and (B)
effective as of the Petition Date, all other
executory contracts and unexpired leases of
the Debtors are subject to the treatment
provided in Article IX of the Plan;
(x) provide that with respect to all
assumptions and all assignments described or
authorized in the preceding paragraph, all
such contracts or leases shall remain in
full force and effect for the benefit of the
Buyer, the Reorganized Sale Debtors or the
Liquidation Trust, as applicable,
notwithstanding any provisions in any
contract or lease (including provisions of
the kinds described in Bankruptcy Code
section 365(b)(2) and (f)) that prohibit
assignment or transfer thereof or that
enable or require termination or
modification of such contract or lease upon
assignment thereof;
(xi) establish the Liquidation Trust
consistent with the terms of the Liquidation
Trust Agreement and the Plan;
(xii) order, find and decree that the
Transfers of Assets by the Debtors to the
Buyer, the Reorganized Sale Debtors or the
Liquidation Trust: (A) are or shall be
legal, valid, and effective transfers of
property; (B) vest or shall vest the
transferee with good title to such property
free and clear of all Liens, Claims,
encumbrances, and Interests of any Person,
except as expressly provided in the Plan,
Purchase Agreement or Confirmation Order;
(C) do not and shall not constitute
avoidable transfers under the Bankruptcy
Code or under applicable bankruptcy or
non-bankruptcy law; and (D) do not and shall
not subject the Buyer, the Reorganized Sale
Debtors or the Liquidation Trust to any
liability by reason of such transfer under
the Bankruptcy Code or under applicable
non-bankruptcy law, including any laws
affecting successor or transferee liability
or fraudulent conveyance or transfer laws;
(xiii) find that the Plan complies with
all applicable provisions of the Bankruptcy
Code, including that the Plan was proposed
in good faith and that the Confirmation
Order was not procured by fraud;
(xiv) order, find and decree that, unless
otherwise explicitly stated in the Plan, all
Claims related to the Debtors not otherwise
discharged or released under the Plan, if
any, shall become solely the responsibility
of the Reorganized Sale Debtors and shall
not be the responsibility or liability of
the Liquidation Trust or the Buyer;
(xv) approve, in all respects, the Plan
Supplement;
40
(xvi) find that the provisions of
Bankruptcy Code sections 1145 and 1146(c)
apply to the transactions contemplated
hereunder, if applicable; and
(xvii) appoint a Person to serve as the
responsible officer and director for each of
the Reorganized Sale Debtors empowered to
take action without requiring the vote or
consent of the Holders of Old Common Stock
in accordance with applicable law.
(b) UNDER THE STAND ALONE OPTION.
Unless this condition is waived in accordance with the Plan,
the Confirmation Order and the Plan Supplement must be in form and substance
reasonably acceptable to the Debtors, the Creditors' Committee and Berkshire,
and the Confirmation Order shall:
(i) include a provision authorizing the
Reorganized Debtors to adopt and file their
respective Amended and Restated Certificates
of Incorporation and Amended and Restated
Bylaws;
(ii) order, find and decree that the
Confirmation Order shall supersede any
orders of the Court issued prior to the
Confirmation Date to the extent that those
prior orders may be inconsistent with the
Confirmation Order;
(iii) order and decree that the Estates
of the Debtors shall be substantively
consolidated but only to the extent set
forth in the Plan;
(iv) include a provision authorizing the
issuance of the New Common Stock and New
Warrants, if necessary;
(v) establish the Liquidation Trust
consistent with the terms of the Liquidation
Trust Agreement and the Plan;
(vi) establish the Stand Alone Voting
Trust consistent with the terms of the Stand
Alone Voting Trust Agreement and the Plan;
(vii) order, find and decree that the
Transfers of Assets by the Debtors to the
Reorganized Stand Alone Debtors or the
Liquidation Trust: (A) are or shall be
legal, valid, and effective transfers of
property; (B) vest or shall vest the
transferee with good title to such property
free and clear of all Liens, Claims,
encumbrances, and Interests of any Person,
except as expressly provided in the Plan,
Purchase Agreement or Confirmation Order;
(C) do not and shall not constitute
avoidable transfers under the Bankruptcy
Code or under applicable bankruptcy or
non-bankruptcy law; and (D) do not and shall
not subject the Reorganized Stand Alone
Debtors or the Liquidation Trust to any
liability by reason of such transfer under
the Bankruptcy Code or under applicable
non-bankruptcy law, including any laws
affecting successor or transferee liability;
41
(viii) find that the Plan complies with
all applicable provisions of the Bankruptcy
Code, including that the Plan was proposed
in good faith and that the Confirmation
Order was not procured by fraud;
(ix) order, find and decree that, unless
otherwise explicitly stated in the Plan, all
claims related to the Debtors not otherwise
discharged or released under the Plan, if
any, shall become solely the responsibility
of the Reorganized Stand Alone Debtors and
shall not be the responsibility or liability
of the Liquidation Trust;
(x) find that confirmation of the Plan
is not likely to be followed by the
liquidation of the Reorganized Stand Alone
Debtors or the need for further financial
reorganization, expect as specifically
provided in the Plan;
(xi) approve, in all respects, the Plan
Supplement;
(xii) approve in all respects the other
settlements, transactions, and agreements to
be effectuated pursuant to the Plan,
including the Exit Facility Agreement; and
(xiii) find that the provisions of
Bankruptcy Code sections 1145 and 1146(c)
apply to the transactions contemplated
hereunder, if applicable.
5.2 CONDITIONS TO CONSUMMATION.
(a) UNDER THE SALE OPTION.
The Debtors intend to request that the Confirmation Order
include a finding by the Bankruptcy Court that, notwithstanding Bankruptcy Rule
3020(e), the Confirmation Order shall take effect immediately upon its entry and
shall be a Final Order. Notwithstanding the foregoing, the Plan may not be
consummated, and the Effective Date shall not occur, unless and until each of
the conditions set forth below is satisfied or waived (if and to the extent
permitted by the Plan) by the Debtors, the Creditors' Committee, the Buyer and
Berkshire (such waivers shall not be unreasonably withheld):
(i) after the entry of the Confirmation
Order, no modifications shall have been made
to the Plan except in accordance with its
provisions with respect to its modification;
(ii) the Confirmation Date shall have
occurred and the Confirmation Order, in a
form consistent with Section 5.1(a), shall
have been signed by the judge presiding over
the Chapter 11 Cases and shall have become a
Final Order;
(iii) all conditions precedent to the
confirmation of the Plan in Section 5.1(a)
of the Plan shall have been satisfied and
shall continue to be satisfied;
42
(iv) all actions, documents, and
agreements necessary to implement the
provisions of the Plan to be effectuated on
or prior to the Effective Date, including
any actions, documentation or agreements
necessary for the release of any collateral
pursuant to Section 5.03 of the Purchase
Agreement, shall be reasonably satisfactory
to the Debtors, the Creditors' Committee and
(to the extent required by the Purchase
Agreement) the Buyer, and such actions,
documents, and agreements shall have been
effected or executed and delivered. All
documents to be contained in the Plan
Supplement shall be completed and in final
form and, as applicable, executed by the
parties thereto and all conditions precedent
contained in any of the foregoing shall have
been satisfied or waived;
(v) all conditions to the closing under
the Purchase Agreement shall have been
satisfied or waived in accordance therewith,
and the closing is prepared to occur on the
Effective Date; and
(vi) the Debtors shall have sufficient
Cash on hand (or will have sufficient Cash
immediately upon the closing of the Purchase
Agreement) to make distributions of Cash
required pursuant to the Plan on the Initial
Distribution Date and to fund reasonably
anticipated expenses of the Liquidation
Trust.
(b) UNDER THE STAND ALONE OPTION.
The Debtors intend to request that the Confirmation Order
include a finding by the Bankruptcy Court that, notwithstanding Bankruptcy Rule
3020(e), the Confirmation Order shall take effect immediately upon its entry and
shall be a Final Order. Notwithstanding the foregoing, the Plan may not be
consummated, and the Effective Date shall not occur, unless and until each of
the conditions set forth below is satisfied or waived (if and to the extent
permitted by the Plan) by the Debtors, the Creditors' Committee and Berkshire
(such waivers shall not be unreasonably withheld):
(i) after the entry of the Confirmation
Order, no modifications shall have been made
to the Plan except in accordance with its
provisions with respect to its modification;
(ii) the Confirmation Date shall have
occurred and the Confirmation Order, in a
form consistent with Section 5.1(b), shall
have been signed by the judge presiding over
the Chapter 11 Cases and shall have become a
Final Order;
(iii) all conditions precedent to the
confirmation of the Plan in Section 5.1(b)
of the Plan shall have been satisfied and
shall continue to be satisfied;
(iv) all actions, documents, and
agreements necessary to implement the
provisions of the Plan to be effectuated on
or prior to the Effective Date shall be
reasonably satisfactory to the
43
Debtors, the Creditors' Committee and
Berkshire, and such actions, documents, and
agreements shall have been effected or
executed and delivered. All documents to be
contained in the Plan Supplement shall be
completed and in final form and, as
applicable, executed by the parties thereto
and all conditions precedent contained in
any of the foregoing shall have been
satisfied or waived;
(v) the Debtors shall have sufficient
Cash on hand (or investments projected by
the Debtors to provide timely Cash) to make
distributions of Cash required pursuant to
the Plan on the Initial Distribution Date
and to fund reasonably anticipated expenses
of the Liquidation Trust;
(vi) the Debtors have established the
Liquidation Trust; and
(vii) the Debtors have entered into the
necessary agreements and may commence
borrowing under the Exit Facility.
5.3 WAIVER OF CONDITIONS.
The waiver of any condition set forth in this Article V may be
made without further notice or order of the Bankruptcy Court.
5.4 EFFECT OF NONOCCURRENCE OF THE CONDITIONS TO CONSUMMATION.
If each of the conditions to consummation and the occurrence
of the Effective Date has not been satisfied or duly waived in accordance with
the Plan on or before the first Business Day that is more than ninety (90) days
after the Confirmation Date, or such later date as shall be agreed by the
Debtors, the Creditors' Committee and Berkshire, the Debtors may schedule a
status hearing with the Bankruptcy Court. If the Confirmation Order is
ultimately vacated, the Plan shall be null and void in all respects, and nothing
contained in the Plan shall constitute an admission, a waiver or release of any
Claims against or Interests in any of the Debtors.
ARTICLE VI.
IMPLEMENTATION
In addition to the provisions set forth elsewhere in the Plan,
the following shall constitute the means of execution and implementation of the
Plan. The Sale Option shall be implemented unless the Purchase Agreement is
terminated by its terms; provided, however, that the Debtors may not terminate
the Purchase Agreement, and thereby consummate the Plan pursuant to the Stand
Alone Option, without the consent of the Creditors' Committee, which consent
shall not be unreasonably withheld. If the Purchase Agreement is terminated by
its terms, the Plan will be implemented according to the Stand Alone Option.
44
6.1 PLAN IMPLEMENTATION UNDER THE SALE OPTION.
(a) CONSUMMATION OF SALE TRANSACTION.
Entry of the Confirmation Order shall constitute the
Bankruptcy Court's approval of the Purchase Agreement and the transactions to be
entered into, and actions to be taken, thereunder pursuant to sections 363, 365,
1123, 1129, 1145 and 1146(c) of the Bankruptcy Code. The Debtors shall sell and
Transfer the Purchased Business to the Buyer in accordance with the Purchase
Agreement.
(b) AUTHORIZATION OF THE SALE TRANSACTION.
The confirmation of this Plan shall authorize the
consummation of all transactions contemplated by the Purchase Agreement with no
requirement of any further authorization by the boards of directors,
shareholders, members, managers, partners or general partners of any of the
Debtors. Upon confirmation, the appropriate officers of the Debtors shall be
authorized to execute any and all documents and perform any and all acts
necessary and appropriate to consummate all transactions contemplated by the
Purchase Agreement.
(c) REVESTING AND TRANSFER OF ASSETS.
Pursuant to Bankruptcy Code section 1141(b), the
assets and property of the Estates and of the Debtors shall vest or revest, such
that: (i) on the Effective Date, the Purchase Consideration, less the
Reorganized Sale Debtors Capitalization Amount, and the Excluded Sale Trust
Assets, including any value associated with Debtor Suburban Home Sales, Inc. to
the extent such value is an Excluded Asset, shall vest in the Liquidation Trust;
and (ii) on the Effective Date, the Excluded Sale Debtor Assets and the
Reorganized Sale Debtors Capitalization Amount shall vest or revest in the
Reorganized Sale Debtors; provided, however, that the Liquidation Trust may
abandon or otherwise not accept any Excluded Sale Trust Assets that the
Liquidation Trust believes, in good faith, have no value to the Liquidation
Trust. Any Excluded Sale Trust Assets which the Liquidation Trust abandons or
otherwise does not accept shall not vest or revest in the Liquidation Trust and
shall vest or revest in the Reorganized Sale Debtors.
As of the Effective Date, all Assets vested or
revested in the Liquidation Trust or the Reorganized Sale Debtors, and all
assets and property dealt with by the Plan, including all Assets transferred to
the Buyer pursuant to the Purchase Agreement, shall be free and clear of all
Claims, Liens, and interests except as otherwise specifically provided in the
Plan or in the Confirmation Order. Any property of any non-debtor affiliates of
the Debtors, and any Claims and Liens against any non-debtor affiliates of the
Debtors or their respective properties shall not be affected or impaired by the
operation of the Plan, the Confirmation Order, or otherwise except as
specifically provided herein.
Additionally, as of the Effective Date, under the
Sale Option, all of the Estates' rights, benefits, duties and obligations under
the Purchase Agreement arising after the closing of the Purchase Agreement shall
be assumed by, assigned to and vest in the Liquidation Trust.
45
(d) MERGER OF DEBTORS AND VESTING OF ASSETS IN
REORGANIZED SALE DEBTORS.
The Debtors' anticipate that, on the Effective Date, the
Reorganized Sale Debtors may or may not each remain organized as they were prior
to the Petition Date under the applicable state law of each of their respective
jurisdictions of organization, except to the extent a different corporate
structure is determined to benefit the Reorganized Sale Debtors or the
Liquidation Trust and/or such entities have not previously been merged,
liquidated or dissolved in accordance with applicable law prior to the Effective
Date. Pursuant to the Plan, each of the surviving Reorganized Sale Debtors will
be governed by an independent and disinterested Person selected by the Debtors
with the consent of the Creditors' Committee and Berkshire, which consent shall
not be unreasonably withheld, and identified in the Plan Supplement, as each
Reorganized Sale Debtors' sole officer, director or similar appropriate capacity
under state law; provided, however, that an outstanding Fee Claim shall not
render a Person ineligible to serve as the sole officer and director of any of
the Reorganized Sale Debtors. Such individual shall be empowered to take all
necessary and appropriate corporate actions without further meetings or voting
by shareholders, members, partners, or holders of ownership interests. If
Oakwood Financial Corporation is not a debtor under the Bankruptcy Code as of
the Effective Date, Reorganized Sale OKWD shall retain the stock of Oakwood
Financial Corporation. If Oakwood Financial Corporation is a debtor under the
Bankruptcy Code on the Effective Date, its plan of reorganization shall provide
for the ownership of its stock by the Reorganized Sale Debtors.
(e) TREATMENT OF OLD COMMON STOCK, INTERESTS AND
BENEFICIAL INTEREST IN THE LIQUIDATION
TRUST.
On the Effective Date, the shares of Old Common Stock
shall remain outstanding pursuant to the terms of the Plan; provided, however,
that the rights of Holders of Old Common Stock may be altered to effectuate the
purposes of the Plan. The Reorganized Sale Debtors likely will be dissolved in
accordance with state law, in which event the shares of Old Common Stock shall
not be transferable, shall not be listed on any exchange, and no periodic
reports will be filed with the Securities and Exchange Commission. The
beneficial interests of the Liquidation Trust issued pursuant to the Plan shall
be issued pursuant to the exemption from securities registration contained in
section 1145 of the Bankruptcy Code. Any securities issued or transferred by the
Reorganized Sale Debtors or the Liquidation Trust shall be issued or transferred
pursuant to the exemption from securities registration contained in section 1145
of the Bankruptcy Code and shall be exempt from taxes pursuant to section
1146(c) of the Bankruptcy Code.
(f) CONSIDERATIONS REGARDING THE ADDITIONAL
DEBTORS.
In order to consummate the sale under the Purchase
Agreement three more entities wholly owned by the Debtors--Oakwood Financial
Corporation, Oakwood Investment Corporation and Oakwood Servicing Holdings Co.,
LLC. (and potentially other similar entities) may become debtors and may file
motions and plans of reorganization to facilitate certain transfers. These
entities are special purpose entities with limited activities and their filings
and bankruptcy cases, even if substantively consolidated with the Debtors, would
not have a material effect on distributions to creditors.
46
Pursuant to the Plan or a separate motion, OHSC
shall, under sections 105, 363 and 365 of the Bankruptcy Code, as of the
Effective Date, (i) reject the Subservicing Agreements, (ii) assume the
Servicing Agreements, and (iii) assign the Servicing Agreements to the Buyer in
accordance with Section 4.13 of the Purchase Agreement. To the extent the
Subservicing Agreements and Servicing Agreement are not already the subjects of
a separate order or orders of the Bankruptcy Court, the Plan shall constitute a
motion for authority to reject the Subservicing Agreements and to assume and
assign the Servicing Agreements in accordance with Section 4.13 of the Purchase
Agreement.
(g) DISTRIBUTIONS OF CASH.
The Liquidation Trust shall be responsible for making
all distribution of Cash to Holders of Allowed Administrative Claims, Allowed
Priority Tax Claims, Allowed Class 1 Claims, Allowed Class 2 Claims and Allowed
Class 3 Claims, subject to appropriate reserves as described in Section 8.2 of
the Plan.
6.2 PLAN IMPLEMENTATION UNDER THE STAND ALONE OPTION.
(a) VESTING OF ASSETS.
Pursuant to section 1141(b) of the Bankruptcy Code,
except for the Initial Stand Alone Trust Assets, as otherwise provided in the
Plan, property of the Estates and of the Debtors shall revest, such that: (i) on
the Effective Date, the Initial Stand Alone Trust Assets shall vest in the
Liquidation Trust; and (ii) on the Effective Date, all of the Assets other than
the Initial Stand Alone Trust Assets shall vest or revest in the Reorganized
Stand Alone Debtors.
As of the Effective Date, all Assets vested or
revested in the Liquidation Trust or the Reorganized Stand Alone Debtors, and
all assets and property dealt with by the Plan, shall be free and clear of all
Claims, Liens, and interests except as otherwise specifically provided in the
Plan or in the Confirmation Order. Any property of any non-debtor affiliates of
the Debtors, and any Claims and Liens against any non-debtor affiliates of the
Debtors or their respective properties shall not be affected or impaired by the
operation of the Plan, the Confirmation Order, or otherwise except as
specifically provided herein.
From and after the Effective Date, the Reorganized
Stand Alone Debtors may operate their businesses and use, acquire, and dispose
of property without supervision or approval of the Bankruptcy Court, free of any
restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the guidelines
and requirements of the United States Trustee, other than those restrictions
expressly imposed by the Plan or the Confirmation Order.
(b) AMENDED AND RESTATED CERTIFICATES OF
INCORPORATION.
Upon the Effective Date, the Reorganized Stand Alone
Debtors shall file their Amended and Restated Certificates of Incorporation, as
set forth in the Plan Supplement, with the offices of the Secretary of State of
the state that governs their respective entities in accordance with the
respective state law. Each Amended and Restated Certificate of Incorporation
will, among other things, provide for the prohibition of the issuance of
non-voting
47
equity securities to the extent required by section 1123(a) of the Bankruptcy
Code, and with respect to Reorganized Stand Alone Oakwood, authorize 20,000,000
shares of New Common Stock. After the Effective Date, the Reorganized Stand
Alone Debtors may amend and restate their Amended and Restated Certificates of
Incorporation and other constituent documents as permitted by applicable law.
(c) AMENDED AND RESTATED BYLAWS.
The Reorganized Stand Alone Debtors shall adopt and
effect the Amended and Restated Bylaws, as set forth in the Plan Supplement.
(d) NEW SECURITIES.
On the Effective Date, Reorganized Stand Alone
Oakwood shall issue, in accordance with the provisions of this Plan and the
registration rights agreement in the Plan Supplement, 10,000,000 shares of the
New Common Stock, which shall constitute 100% of the total number of shares of
such New Common Stock to be issued and outstanding on or immediately after the
Effective Date, and the New Warrants to be distributed pursuant to the terms of
the Plan. The Reorganized Stand Alone Debtors shall endeavor in good faith to
list the New Common Stock on a national exchange as soon as reasonably
practicable. The New Warrants, as provided in the Warrant Agreement, shall have
a seven year maturity and an exercise price initially computed for an initial
market value of New Common Stock, which would result in 100% recovery to the
Holders of Class 4A, 4B, 4C, 4D and 4E Claims as provided for in the Warrant
Agreement. The exercise price will increase annually at the risk free rate
(30-year Treasury rate) until their expiration. The shares of New Common Stock
and New Warrants issued pursuant to the Plan shall be issued pursuant to the
exemption from securities registration contained in section 1145 of the
Bankruptcy Code and shall be exempt from taxes pursuant to section 1146(c) of
the Bankruptcy Code.
(e) DIRECTORS.
Upon the Effective Date, the operation of each of the
Reorganized Stand Alone Debtors shall become the general responsibility of their
respective boards of directors (or their equivalents) who shall, thereafter,
have the responsibility for the management, control and operation of each of the
Reorganized Stand Alone Debtors. The initial board of directors for Reorganized
Stand Alone Oakwood shall be comprised of five (5) directors, all of whom are
disinterested under the Bankruptcy Code and independent under applicable
securities law; provided, however, that an outstanding Fee Claim shall not
render a Person ineligible to serve on the initial board of directors; provided
further, however, that the chief executive officer of the Reorganized Stand
Alone Debtors may be named to the initial board of directors. The initial board
of directors shall be designated by the Creditors' Committee, which such
designations shall be reasonably acceptable to the Debtors and Berkshire and
shall be included by the Debtors in the Plan Supplement, prior to the Effective
Date. If, prior to the Confirmation Hearing, the Creditors' Committee does not
so designate an initial board of directors, or designates an incomplete initial
board of directors, the existing members of the board of directors of Oakwood,
before the Confirmation Hearing, shall so designate those remaining undesignated
directorships.
48
The initial boards of directors of the reorganized Affiliate Debtors shall be
the same as that of Reorganized Stand Alone Oakwood unless otherwise designated
by the board of directors of Reorganized Stand Alone Oakwood. Pursuant to
section 1129(a)(5) of the Bankruptcy Code, the names of each of the director
nominees shall be disclosed prior to the entry of any Confirmation Order. All
such directors shall be deemed elected, and those directors not continuing in
office shall be deemed removed therefrom, effective on the Effective Date,
pursuant to the Confirmation Order. Such directors' tenure and the manner of
selection of new directors shall be initially as provided in the Amended and
Restated Certificates of Incorporation and the Amended and Restated Bylaws.
(f) OFFICERS.
On the Effective Date, the existing officers of each
of the Debtors shall be retained and shall remain as officers of the Reorganized
Stand Alone Debtors and shall continue to serve until such time as they may
resign, be removed or be replaced by the board of directors of each of the
Reorganized Stand Alone Debtors.
(g) EMPLOYMENT CONTRACTS AND PROFESSIONAL
RETENTIONS.
From and after the Effective Date, the Reorganized
Stand Alone Debtors may enter into employment contracts with their respective
officers, agents or employees. The Reorganized Stand Alone Debtors may, among
other things, retain any employee, professional, consultant, or claims, notice
or disbursing agents as it shall deem necessary to comply with the provisions of
this Plan, including those Persons that have served as employees, professionals,
consultants or agents during the Chapter 11 Cases.
(h) CORPORATE ACTION AND OTHER DOCUMENTS AND
ACTIONS.
The adoption of the Amended and Restated Certificates
of Incorporation, the Amended and Restated Bylaws, the selection of directors
and officers for the Reorganized Stand Alone Debtors, the issuance and
distribution of the New Common Stock and New Warrants, the execution and
delivery of any contract, instrument, release, document or agreement, and any
other matter provided for under the Plan involving the corporate action to be
taken by or required of any of the Reorganized Stand Alone Debtors shall be
deemed to have occurred and be effective as provided herein, and shall be
authorized and approved in all respects without any requirement of further
action by stockholders or directors of any of the Debtors or Reorganized Stand
Alone Debtors.
(i) APPROVAL OF THE EXIT FACILITY.
Entry of the Confirmation Order shall, to the extent
necessary, authorize and approve, without any further action by the Debtors, the
Exit Facility Agreement and the transactions to be entered into, and actions to
be taken thereunder, pursuant the Bankruptcy Code.
49
(j) DISTRIBUTIONS OF CASH.
The Reorganized Stand Alone Debtors shall be
responsible for making all distributions of Cash to Holders of Allowed
Administrative Claims, Allowed Priority Tax Claims, Allowed Class 1 Claims,
Allowed Class 2 Claims and Allowed Class 3 Claims, subject to appropriate
reserves as described in Section 8.2 of the Plan.
(k) DISTRIBUTIONS OF PROCEEDS FROM THE
LIQUIDATION TRUST.
The Reorganized Stand Alone Debtors shall be
responsible for directing the Liquidation Trust with respect to the creation of
reserves, as described in Section 8.2 of the Plan, and the distribution of the
assets of the Liquidation Trust to Holders of Allowed Claims from Classes 4A,
4B, 4C, 4D and 4E.
6.3 PROVISIONS CONCERNING PLAN IMPLEMENTATION UNDER BOTH THE SALE
OPTION AND THE STAND ALONE OPTION.
(a) SUBSTANTIVE CONSOLIDATION.
(i) EFFECT OF SUBSTANTIVE
CONSOLIDATION.
On the Effective Date, the Estates shall be
substantively consolidated for all purposes related to the Plan (but only for
those purposes) including voting, confirmation, distributions and claim
determinations. The substantive consolidations of the Estates shall have the
following effects: (i) all assets and liabilities of the Debtors shall be
treated as though they were merged for purposes of distribution; (ii) all
prepetition and postpetition cross-corporate guarantees of the Debtors shall be
eliminated; (iii) all Claims based upon guarantees of collection, payment or
performance made by one or more Debtors as to the obligations of another Debtor
or of any other Person shall be discharged, released and of no further force and
effect; (iv) any obligation of any Debtor and all guarantees thereof executed by
one or more of the Debtors shall be deemed to be one obligation of the Estate;
(v) any Claims filed or to be filed in connection with any such obligation and
such guarantees shall be deemed one Claim against the Estate; (vi) each and
every Claim filed in the individual Chapter 11 Case of any of the Debtors shall
be deemed filed against the consolidated Estate in the consolidated Chapter 11
Cases and shall be deemed a single obligation of the relevant Estate under the
Plan on and after the Confirmation Date; and (vii) the Chapter 11 Cases of the
Affiliate Debtors shall be closed and the consolidated Estate be administered
through Oakwood's Chapter 11 Case.
In connection with, and as a result of, the
substantive consolidation of the Debtors' Estates and Chapter 11 Cases as
provided in the Plan, on the occurrence of the Effective Date all Intercompany
Claims shall be (i) released, (ii) contributed to capital, (iii) dividended or
(iv) remain Unimpaired, depending on the tax consequences, and Holders of
Intercompany Claims shall not be entitled to, and shall not, receive or retain
any property or interest in property on account of such Claims, except to the
extent potential tax consequences otherwise dictate. Notwithstanding this
Section 6.3, on the Effective Date, all Debtor Holders of Debtor-Held Interests
in any of the Debtors shall either (i) retain such Debtor-Held Interest, in
50
which case the Debtor Holding an Interest in an Affiliate Debtor shall continue
to hold such Debtor-Held Interest in the corresponding Reorganized Subsidiary or
(ii) receive new equity in the appropriate reorganized Affiliate Debtor upon the
cancellation of the old equity.
The substantive consolidation provided for herein
shall not, other than for purposes related to the Plan and distributions to be
made hereunder, affect the legal and corporate structures of the Debtors or the
Non-Debtor-Held Interests, the rights and defenses of the Liquidation Trust and
the Reorganized Stand Alone Debtors pertaining to the Causes of Action, and any
obligations under any executory contract or unexpired leases assumed in the Plan
or otherwise in the Chapter 11 Cases.
(ii) PLAN AS MOTION FOR APPROVAL OF
SUBSTANTIVE CONSOLIDATION.
The Plan shall serve as a motion seeking entry of an
order substantively consolidating the Estates as provided herein.
(b) CREATION OF THE LIQUIDATION TRUST.
The Liquidation Trustee shall sign the Liquidation
Trust Agreement and accept the Liquidation Trust assets on behalf of the
beneficiaries thereof, and the Liquidation Trust will then be deemed created and
effective without any further action of the directors or shareholders of the
Debtors. The Liquidation Trust shall be established for the sole purpose of
liquidating its assets, with no objective to continue or engage in the conduct
of a trade or business. The beneficiaries of the Liquidation Trust shall be
bound by the Liquidation Trust Agreement. Interests in the Liquidation Trust
shall be uncertificated and shall be nontransferable except upon death of the
interest holder or by operation of law. The Liquidation Trust shall have a term
of five (5) years from the Effective Date, without prejudice to the rights of
the Liquidation Trustee, in consultation with the Liquidation Trust Advisory
Committee, to extend such term as applicable law shall allow.
The Liquidation Trustee may invest Cash (including
any earnings thereon or proceeds therefrom) as permitted by section 345 of the
Bankruptcy Code and in other prudent investments, as authorized by the
Liquidation Trust Advisory Committee; provided, however, that such investment
are investments permitted to be made by a liquidating trust within the meaning
of Treasury Regulation section 301.7701-4(d), as reflected therein, or under
applicable IRS guidelines, rulings, or other controlling authorities.
The Liquidation Trustee shall be the exclusive
trustee of the assets of the Liquidation Trust for purposes of 31 U.S.C. Section
3713(b) and 26 U.S.C. Section 6012(b)(3). The powers, rights, and
responsibilities of the Liquidation Trustee shall be specified in the
Liquidation Trust Agreement and shall include the authority and responsibility
to: (a) receive, manage, invest, supervise, and protect trust assets; (b) pay
taxes or other obligations incurred by the trust; (c) retain and compensate,
without further order of the Bankruptcy Court, the services of employees,
professionals and consultants (including those Persons that have served as
employees, professionals, consultants or claims, noticing and disbursing agents
during the Chapter 11 Cases) to advise and assist in the administration,
prosecution and distribution of trust assets; (d)
51
calculate and implement distributions of trust assets; (e) prosecute,
compromise, and settle, in accordance with the specific terms of that agreement,
all Claims and Causes of Action vested in the Liquidation Trust; (f) under the
Sale Option, resolve issues involving Claims and Interests pursuant to Article X
hereof; (g) under the Sale Option, enter into and perform any and all
obligations of the disputed ownership fund escrow account agreement (the
"Disputed Ownership Fund Escrow Agreement"); and (h) under the Sale Option,
perform any and all duties and obligations arising under the Purchase Agreement
and any other agreements executed or entered into pursuant to the Plan, the
Confirmation Order or any other order of the Bankruptcy Court.
All costs and expenses associated with the
administration of the Liquidation Trust, including reasonable compensation for
the Liquidation Trustee and, as set forth in the Liquidation Trust Agreement,
the Liquidation Trust Advisory Committee, shall be the responsibility of and
paid by the Liquidation Trust in accordance with the Liquidation Trust
Agreement. Under the Sale Option, the Liquidation Trust is the successor to the
Debtors' rights to books and records under the Purchase Agreement. Under the
Stand Alone Option, the Reorganized Stand Alone Debtors shall cooperate with the
reasonable requests of the Liquidation Trustee in furtherance of the Liquidation
Trustee's responsibility to recover trust assets and shall afford reasonable
access during normal business hours, upon reasonable notice, to personnel and
books and records of the Reorganized Stand Alone Debtors to representatives of
the Liquidation Trust to enable the Liquidation Trustee to perform the
Liquidation Trustee's tasks under the Liquidation Trust Agreement and the Plan.
The Reorganized Stand Alone Debtors will not be required to make expenditures in
response to unreasonable requests.
The Liquidation Trust shall be responsible for filing
all federal, state and local tax returns for the Liquidation Trust. The
Liquidation Trust shall comply with all withholding and reporting requirements
imposed by any federal, state, local or foreign taxing authority, and all
distributions made by the Liquidation Trust shall be subject to any such
withholding and reporting requirements. The Liquidation Trust shall provide
reports to holders of interests in the Liquidation Trust as the Liquidation
Trust Advisory Committee deems appropriate.
(c) FEDERAL INCOME TAX TREATMENT OF THE TRUST
FOR THE LIQUIDATION TRUST ASSETS.
For federal income tax purposes, it is intended that
the Liquidation Trust be classified as a liquidating trust under section
301.7701-4 of the Treasury regulations and that such trust be owned by its
beneficiaries (i.e., the Holders of Allowed Claims in Classes 4A, 4B, 4C, 4D and
4E). Accordingly, for federal income tax purposes, it is intended that the
beneficiaries be treated as if they had received a distribution from the Debtors
of an undivided interest in each of the assets of the Liquidation Trust and then
contributed such interests to the Liquidation Trust.
(i) LIQUIDATION TRUST ASSETS TREATED AS
OWNED BY HOLDERS OF ALLOWED CLAIMS.
For all federal income tax purposes, all parties
(including, without limitation, the Debtors, the Liquidation Trust, and the
Holders of Allowed Claims in Classes 4A, 4B, 4C, 4D and 4E) shall treat the
transfer of assets to the Liquidating Trust for the benefit of the
52
Holders of Allowed Claims in Classes 4A, 4B, 4C, 4D and 4E, as (A) a transfer of
the assets of the Liquidation Trust directly to the Holders of Allowed Claims in
Classes 4A, 4B, 4C, 4D and 4E, followed by (B) the transfer by such Holders to
the Liquidation Trust of the assets of the Liquidation Trust in exchange for
beneficial interests in the Liquidation Trust. Accordingly, the Holders of such
Allowed Claims shall be treated for federal income tax purposes as the grantors
and owners of their respective share of the assets of the Liquidation Trust.
(ii) TAX REPORTING.
The Liquidation Trust shall file returns for the
Liquidation Trust as a grantor trust pursuant to Treasury Regulation section
1.671-4(a) and in accordance with this Section 6.3(c). The Liquidation Trust
also shall annually send to each holder of a beneficial interest a separate
statement setting forth the holder's share of items of income, gain, loss,
deduction or credit and will instruct all such holders to report such items on
their federal income tax returns. The Liquidation Trust's taxable income, gain,
loss, deduction or credit will be allocated (subject to Section 8.2 of the Plan,
relating to Disputed Claims) to the Holders of Allowed Claims in Classes 4A, 4B,
4C, 4D and 4E in accordance with their relative beneficial interests in the
Liquidation Trust.
As soon as possible after the Effective Date, the
Liquidation Trust shall make a good faith valuation of the assets of the
Liquidation Trust, and such valuation shall be used consistently by all parties
(including, without limitation, the Debtors, the Liquidation Trust, and the
Holders of Allowed Claims in Classes 4A, 4B, 4C, 4D and 4E) for all federal
income tax purposes. The Liquidation Trust also shall file (or cause to be
filed) any other statements, returns or disclosures relating to the Liquidation
Trust that are required by any governmental unit.
Notwithstanding anything else in the Plan, subject to
definitive guidance from the Internal Revenue Service or a court of competent
jurisdiction to the contrary, the Liquidation Trust shall (i) treat any assets
allocable to, or retained on account of, Disputed Claims as held by one or more
discrete trusts for federal income tax purposes (the "Disputed Claims Reserve"),
consisting of separate and independent shares to be established in respect of
each Disputed Claim, in accordance with the trust provisions of the Tax Code
(sections 641 et. seq.), (ii) treat as taxable income or loss of the Disputed
Claims Reserve, with respect to any given taxable year, the portion of the
taxable income or loss of the Liquidation Trust that would have been allocated
to the holders of Disputed Claims had such Claims been Allowed on the Effective
Date (but only for the portion of the taxable year with respect to which such
Claims are unresolved), (iii) treat as a distribution from the Disputed Claims
Reserve any increased amounts distributed by the Liquidation Trust as a result
of any Disputed Claims resolved earlier in the taxable year, to the extent such
distributions relate to taxable income or loss of the Disputed Claims Reserve
determined in accordance with the provisions hereof, and (iv) to the extent
permitted by applicable law, shall report consistent with the foregoing for
state and local income tax purposes. All Holders of Claims in Classes 4A, 4B,
4C, 4D and 4E shall report, for tax purposes, consistent with the foregoing.
The Liquidation Trustee shall be responsible for
payments, out of the Liquidation Trust Assets, of any taxes imposed on the trust
or its assets, including the Disputed Claims Reserve. In the event, and to the
extent, any Cash retained on account of Disputed
53
Claims in the Disputed Claims Reserve is insufficient to pay the portion of any
such taxes attributable to the taxable income arising from the assets allocable
to, or retained on account of, Disputed Claims, such taxes shall be (i)
reimbursed from any subsequent Cash amounts retained on account of Disputed
Claims, or (ii) to the extent such Disputed Claims have subsequently been
resolved, deducted from any amounts distributable by the Liquidation Trustee as
a result of the resolutions of such Disputed Claims.
The Liquidation Trustee may request an expedited
determination of Taxes of the Debtors and of the Liquidation Trust, including
the Disputed Claims Reserve under section 505(b) of the Bankruptcy Code for all
returns filed for, or on behalf of, the Debtors and the Liquidation Trust for
all taxable periods through the dissolution of the Liquidation Trust.
(iii) DISSOLUTION.
The Liquidation Trustee shall be discharged and the
Liquidation Trust shall be terminated, at such time as (i) all Disputed Claims
have been resolved, (ii) all of the assets of the Liquidation Trust have been
liquidated, and (iii) all distributions required to be made by the Liquidation
Trustee under the Plan and the Liquidation Trust Agreement have been made, but
in no event shall the Liquidation Trust be dissolved later than five years from
the Effective Date unless the Bankruptcy Court, upon motion within the six month
period prior to the fifth anniversary (or the end of any extension period
approved by the Bankruptcy Court), determines that a fixed period extension (not
to exceed three years, together with any prior extensions, without a favorable
letter ruling from the Internal Revenue Service that any further extension would
not adversely affect the status of the trust as a liquidating trust for federal
income tax purposes) is necessary to facilitate or complete the recovery and
liquidation of the assets of the Liquidation Trust.
(d) APPOINTMENT OF LIQUIDATION TRUSTEE
The Liquidation Trustee for the Liquidation Trust
shall be an independent and disinterested Person designated by the Creditors'
Committee with the consent of the Debtors and Berkshire, whose approval shall
not be unreasonably withheld, and identified in the Plan Supplement; provided,
however, that an outstanding Fee Claim shall not render a Person ineligible to
serve as the Liquidation Trustee.
(e) THE LIQUIDATION TRUST ADVISORY COMMITTEE.
On the Effective Date, the Liquidation Trust Advisory
Committee shall be formed pursuant to the Liquidation Trust Agreement. The
Liquidation Trust Advisory Committee shall be comprised of five (5) members,
consisting of WL Ross & Co. LLC, Aegon USA Investment Management, LLC, and three
(3) independent and disinterested members to be appointed by the Creditors'
Committee with the consent of the Debtors and Berkshire, whose approval shall
not be unreasonably withheld; provided, however, that an outstanding Fee Claim
shall not render a Person ineligible to serve on the Liquidation Trust Advisory
Committee. The three (3) independent and disinterested members shall be
identified in the Plan Supplement. If WL Ross & Co. LLC or Aegon USA Investment
Management, LLC subsequently determine that they are no longer interested in
serving as members of the Liquidation Trust Advisory
54
Committee, the Creditors' Committee will select replacement members, to be
identified in the Plan Supplement, with the consent of the Debtors and
Berkshire, whose approval shall not be unreasonably withheld (reasonableness
shall be determined in light of the balance between Holders of REMIC Guarantee
Claims and Holders of other Claims in connection with the ongoing litigation
concerning the Class 4C Claims). If, as of the Confirmation Date, the Creditors'
Committee has not appointed the three (3) independent and disinterested members
of the Trust Advisory Committee, until at least three (3) members are so
appointed, the Debtors, before the Confirmation Hearing, shall so designate
those remaining undesignated members of the Trust Advisory Committee. The
Liquidation Trustee shall make such reports to and seek such advice from, if
any, the Liquidation Trust Advisory Committee as required under the Liquidation
Trust Agreement. The Liquidation Trust Advisory Committee may, by majority vote,
authorize the Liquidation Trustee to invest the corpus of the Liquidation Trust
in prudent investments other than those described in section 345 of the
Bankruptcy Code.
The Liquidation Trust Advisory Committee's role with
respect to issues involving Claims and Interests pursuant to Article X of the
Plan will be handled only by the three (3) independent and disinterested members
of the five (5) member Board. The Liquidation Trust Advisory Committee shall
have only consultation rights with respect to the decisions of the Liquidation
Trustee in managing the Liquidation Trust. In the event that the Liquidation
Trust Advisory Committee disagrees with any intended actions or inaction of the
Trustee, it shall have (a) the right to seek an order from the Bankruptcy Court
compelling the Liquidation Trustee to act or cease acting in accordance with the
order and (b) the right to remove the Liquidation Trustee if the Liquidation
Trust Advisory Committee believes that the intended actions or inaction rise to
the level of gross negligence or willful misconduct. In the event of the
resignation or removal of the Liquidation Trustee, the Liquidation Trust
Advisory Committee shall, by majority vote or order of the Bankruptcy Court,
designate a person to serve as successor Liquidation Trustee.
The Liquidation Trust Advisory Committee shall be
entitled to retain and compensate, without further order of the Bankruptcy
Court, the services of employees, professionals and consultants (including
without limitation claims, noticing and disbursing agents) to advise and assist
the Liquidation Trust Advisory Committee in the furtherance of its duties,
including those Persons that have served as employees, professionals,
consultants or agents during the Chapter 11 Cases.
The Liquidation Trust Advisory Committee may, at its
discretion, require a fidelity bond from the Liquidation Trustee in such
reasonable amount as may be agreed to by majority vote of the Liquidation Trust
Advisory Committee.
(f) CAUSES OF ACTIONS AND DEFENSES.
Prosecution and settlement of all Causes of Action,
including Avoidance Actions, shall be the sole responsibility of the Liquidation
Trust, pursuant to this Plan, and the Confirmation Order; provided, however,
that, under the Stand Alone Option, Avoidance Actions pertaining to the secured
status of any Disputed Secured Claim shall be vested in the Reorganized Stand
Alone Debtors. Subject to the foregoing proviso, the Liquidation Trustee shall
have all rights, powers, and interests of the Debtors, as debtors in possession,
to pursue,
55
settle or abandon such Causes of Action as a representative of the Estates
pursuant to section 1123(b)(3) of the Bankruptcy Code. All Causes of Action,
including Avoidance Actions, are reserved and preserved to the extent set forth
in Section 7.2 of the Plan and shall not be impacted or affected in any way by
the substantive consolidation of the Estates.
(g) TERMINATION OF THE FINAL DIP AGREEMENT.
Subject to the payment in full of all amounts owed
under the Final DIP Agreement or other such treatment as agreed to by the
Debtors and the DIP Lenders, on the Effective Date, the obligations arising
under the Final DIP Agreement shall be deemed to have terminated. All amounts
due and owing, if any, under the Final DIP Agreement shall be paid in full on
the Effective Date as Allowed Administrative Claims, and all liens, mortgages
and security interests granted under the Final DIP Agreement shall automatically
be extinguished without the need for any filings or further actions under the
state or federal laws, and all authorities shall be authorized to accept the
Confirmation Order and notice of Effective Date as a release or satisfaction of
all such liens, mortgages and security interests.
(h) DISSOLUTION OF THE CREDITORS' COMMITTEE.
The Creditors' Committee shall continue in existence until the
Effective Date to exercise those powers and perform those duties specified in
section 1103 of the Bankruptcy Code and shall perform such other duties as it
may have been assigned by the Bankruptcy Court prior to the Effective Date. On
the Effective Date, the Creditors' Committee shall be dissolved and its members
shall be deemed released of any continuing duties, responsibilities and
obligations in connection with the Chapter 11 Cases or the Plan and its
implementation, and the retention and employment of the Creditors' Committee's
attorneys, accountants and other agents shall terminate, except with respect to
(i) all Fee Claims, (ii) any appeals of the Confirmation Order, and (iii) any
estate litigation commenced by the Creditors' Committee pending on the Effective
Date not resolved by the Plan.
ARTICLE VII.
EFFECTS OF PLAN CONFIRMATION
7.1 DISCHARGE.
Except as otherwise provided in the Plan or the Confirmation
Order, as of the Effective Date, the Debtors and all successors in interest,
including, without limitation, the Liquidation Trust, the Reorganized Sale
Debtors, the Reorganized Stand Alone Debtors and the Buyer, shall be discharged
from, and the Confirmation Order shall operate as a permanent injunction
against, the commencement or continuation of any action, the employment of any
process, or any act to collect, recover, offset or recoup, right to sue, on
account of any Claim or Interest, from or against the Debtors, their Estates and
any and all successors in interest (including, without limitation, the
Liquidation Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors and the Buyer), and the Debtors', their Estates', and all successors'
liability in respect thereof shall be extinguished completely, and the Debtors
and all successors in interest (including, without limitation, the Liquidation
Trust, the Reorganized Sale
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Debtors, the Reorganized Stand Alone Debtors and the Buyer) shall be released
and discharged from any Claim or Interest of a kind specified in section 502(g),
502(h) and 502(i) of the Bankruptcy Code, whether or not a Proof of Claim is
filed or deemed filed under section 501 of the Bankruptcy Code, such Claim is
allowed under section 502 of the Bankruptcy Code, or the Holder of such Claim or
Interest has accepted the Plan.
In accordance with the foregoing, except as provided in the
Plan or the Confirmation Order, as of the Effective Date, the Confirmation Order
will be a judicial determination of a discharge of all Claims or Interests
against the Debtors and a termination of all Interests and other rights of
equity security holders in the Debtors, pursuant to sections 524 and 1141 of the
Bankruptcy Code, and such discharge will void any judgment obtained against a
Debtor or its successors at any time and shall act as res judicata or collateral
estoppel as against third parties, but not as to the Debtors, their Estates or
any and all successors in interest.
7.2 RETENTION OF CAUSES OF ACTION/RESERVATION OF RIGHTS.
Except as expressly provided for in the Plan or the
Confirmation Order, any and all Causes of Action of any kind or nature
whatsoever, against third parties arising before the Effective Date, whether
known or unknown and regardless of whether the existence of same has been
disclosed, including, without limitation, Avoidance Actions and the right to
enforce the terms and conditions of the Purchase Agreement, the Final DIP
Agreement and the Exit Facility Agreement, that the Debtors may have on or
before the Effective Date shall survive confirmation of the Plan and shall be
reserved and preserved.
Except as expressly provided for in the Plan or the
Confirmation Order, nothing contained in the Plan or the Confirmation Order
shall be deemed to (i) be res judicata or the basis for estoppel of, (ii) create
any other defense to the prosecution to judgment on the merits of, (iii) be a
waiver of or (iv) be a relinquishment of any Causes of Action, including
Avoidance Actions and the right to enforce the terms and conditions of the
Purchase Agreement, Exit Facility Agreement or Final DIP Agreement, which the
Debtors had on or before the Effective Date, against or with respect to any
Causes of Action left unaltered or unimpaired by the Plan. On and after the
Effective Date, the Liquidation Trust shall have, retain, reserve and be
entitled to assert, prosecute, settle or abandon all such Causes of Action which
the Debtors had on or before the Effective Date; and all of the Liquidation
Trust's legal and equitable rights respecting any Causes of Action, including
Avoidance Actions and the right to enforce the terms and conditions of the
Purchase Agreement, Exit Facility Agreement or Final DIP Agreement after the
Effective Date. For the avoidance of doubt, under the Stand Alone Option,
nothing in this Section 7.2 shall be interpreted as empowering the Liquidation
Trust with respect to Claims resolution responsibilities reserved for the
Reorganized Stand Alone Debtors in Article X of the Plan.
7.3 POST-CONSUMMATION EFFECT OF EVIDENCE OF CLAIMS OR INTERESTS.
Outstanding notes and other instruments, including, but not
limited to, all Junior Notes, Senior Notes, B-2 REMIC Guarantees, and the
Resecuritization Note Put Option, and all related documentation, evidencing a
Claim against any of the Debtors and all obligations of the Debtors under or in
respect of any of the foregoing shall be cancelled and any rights thereunder
terminated. Effective upon the Effective Date, such notes and other instruments
represent only
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the right to participate in the distributions, if any, contemplated by the Plan
to the extent that such Claim is an Allowed Claim under the Plan. Under the
Stand Alone Option, the outstanding Old Common Stock and other instruments
evidencing Interests in the Debtors shall, effective upon the Effective Date,
represent only the right to participate in the distributions, if any,
contemplated by the Plan to the extent that such Interest is an Allowed Interest
under the Plan. Under the Stand Alone Option, the outstanding Old Common Stock
and other instruments evidencing Interests in the Debtors shall be deemed
cancelled without any further action of the Debtors.
Notwithstanding the previous paragraph, (i) except to the
extent the Plan affects the B-2 REMIC Guarantees and the Resecuritization Note
Put Option, nothing contained in this Plan shall affect the rights and
obligations of the REMIC Trusts and the Resecuritization Trust under the
applicable REMIC Trust and the Resecuritization Trust transaction documents or
impair, amend or adversely affect the REMIC Trusts and the Resecuritization
Trust and the rights of each REMIC Trustee and the Resecuritization Trustee
thereunder relating to the B-Piece REMIC Certificates or the X REMIC
Certificates, and (ii) the Senior Notes Indenture and Junior Notes Indenture
shall continue in effect for purposes of permitting the Senior Notes Indenture
Trustee and the Junior Notes Indenture Trustee to make distributions pursuant to
the Plan and to perform such necessary functions with respect thereto. No party,
including but not limited to the Debtors, the Liquidation Trust, the Reorganized
Sale Debtors or the Reorganized Stand Alone Debtors, shall have any obligation
to recognize any transfer of the B-2 REMIC Guarantees, the Resecuritization
Note, the Junior Notes, the Senior Notes or the Interests occurring after the
Confirmation Date. This provision shall not prohibit the surrender of REMIC
Certificates or interests therein to the Liquidation Trust (under the Sale
Option) or the Reorganized Sale Debtors (under the Stand Alone Option) in
connection with the resolution of Disputed Class 4C Claims. Termination of the
Junior Notes Indenture and the Senior Notes Indenture shall not impair the
rights of the Junior Notes Indenture Trustee and the Senior Notes Indenture
Trustee, as the case may be, to enforce their charging liens, established in law
or pursuant to the Junior Notes Indenture and the Senior Notes Indenture,
against property that would otherwise be distributed pursuant to this Plan to
Holders of the Junior Notes or the Senior Notes.
7.4 TREATMENT OF FUTURE CLAIMS.
Unless otherwise explicitly provided for under the Plan, all
Future Claims shall be solely the responsibility and liability of the
Reorganized Sale Debtors (under the Sale Option) or the Reorganized Stand Alone
Debtors (under the Stand Alone Option) and shall not be the responsibility or
liability of the Liquidation Trust or the Buyer.
7.5 LIMITED RELEASES BY DEBTORS.
As of the Effective Date, the Debtors shall be deemed to have
waived and released the Debtors, the Creditors' Committee, Berkshire and the
Buyer, and each of those parties' officers, directors, members, ex officio
members, and the Interested Party Professionals, from any and all Causes of
Action of the Debtors (including claims which the Debtors otherwise have legal
power to assert, compromise or settle in connection their Chapter 11 Cases)
arising on
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or before the Effective Date; provided, however, that this provision shall not
operate as a waiver or release of any Causes of Action (a) in respect to any
loan, advance or similar payment by the Debtors to such parties, (b) in respect
of any contractual obligation owed to any of the Debtors by such parties,
including, without limitation, the obligations arising under the Purchase
Agreement, the Final DIP Agreement and the Exit Facility Agreement, (c) in
respect to any Causes of Action based upon the willful misconduct or gross
negligence of such parties, (d) to the extent based upon or attributable to such
parties gaining in fact a personal profit to which such parties were not legally
entitled, including, without limitation, profits made from the purchase or sale
of equity securities of Oakwood which are recoverable by Oakwood or its
successors pursuant to section 16(b) of the Securities Exchange Act of 1934, as
amended and (e) that is an Avoidance Action; provided further, however, that
this provision shall not operate as a waiver or release of any right that any
party in interest may have to object to any Claim, including Fee Claims, or any
Interest and shall not otherwise operate as a waiver or release of any objection
to Claims or Interests pending as of the Effective Date, regardless of whether
such objection was brought by the Debtors or any other party in interest.
7.6 TERM OF INJUNCTIONS OR STAYS.
Unless otherwise provided, all injunctions or stays provided
for in the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy
Code or otherwise in effect on the Confirmation Date shall remain in full force
and effect until the Effective Date after which the discharge provisions and
permanent injunctions of the Plan and the Bankruptcy Code will be given full
force and effect.
7.7 EXCULPATION.
The Debtors, the Creditors' Committee, Berkshire and the
Buyer, and each of those parties' officers, directors, members, ex officio
members, and the Interested Party Professionals shall neither have nor incur any
liability, in any form, to any Holder of a Claim or Interest, or a governmental
entity on behalf of a Holder of a Claim or Interest, for any act or omission in
connection with or arising out of their involvement in the filing and conduct of
the Chapter 11 Cases, including the type or value of distributions, if any,
reserved under the Plan for Holders of Interest, the solicitation of votes for
acceptance or rejection of the Plan, the pursuit of confirmation and
consummation of the Plan, the administration of the Plan or the property to be
distributed under the Plan, except for any liabilities which may arise under the
statutes or regulations administered by the Securities and Exchange Commission
or from any willful misconduct or gross negligence, and, in all respects, shall
be entitled to rely upon the advice of counsel with respect to their duties and
responsibilities under the Plan and applicable law.
7.8 INJUNCTION.
CONFIRMATION OF THIS PLAN SHALL HAVE THE EFFECT OF, AMONG
OTHER THINGS, PERMANENTLY ENJOINING ALL PERSONS WHO HAVE HELD, HOLD OR MAY HOLD
OR HAVE ASSERTED, ASSERT OR MAY ASSERT CLAIMS AGAINST OR INTERESTS IN ANY OF THE
DEBTORS AGAINST ANY OF THE DEBTORS, WITH RESPECT TO ANY SUCH CLAIM OR INTEREST
FROM AND AFTER THE EFFECTIVE DATE, FROM TAKING ANY OF THE FOLLOWING ACTIONS
(OTHER THAN ACTIONS TO ENFORCE ANY RIGHTS OR OBLIGATIONS UNDER THE PLAN): (a)
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COMMENCING, CONDUCTING OR CONTINUING IN ANY MANNER, DIRECTLY OR INDIRECTLY, ANY
SUIT, ACTION OR OTHER PROCEEDING OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY
PROCEEDING IN A JUDICIAL, ARBITRAL, ADMINISTRATIVE OR OTHER FORUM) AGAINST OR
AFFECTING THE ESTATES, THE LIQUIDATION TRUST, THE REORGANIZED SALE DEBTORS, THE
REORGANIZED STAND ALONE DEBTORS, THE BUYER OR ANY OF THEIR PROPERTY; (b)
ENFORCING, LEVYING, ATTACHING (INCLUDING, WITHOUT LIMITATION, ANY PRE-JUDGMENT
ATTACHMENT), COLLECTING OR OTHERWISE RECOVERING BY ANY MANNER OR MEANS, WHETHER
DIRECTLY OR INDIRECTLY, ANY JUDGMENT, AWARD, DECREE OR ORDER AGAINST THE
ESTATES, THE LIQUIDATION TRUST, THE REORGANIZED SALE DEBTORS, THE REORGANIZED
STAND ALONE DEBTORS, THE BUYER OR ANY OF THEIR PROPERTY; (c) CREATING,
PERFECTING OR OTHERWISE ENFORCING IN ANY MANNER, DIRECTLY OR INDIRECTLY, ANY
ENCUMBRANCE OF ANY KIND AGAINST THE ESTATES, THE LIQUIDATION TRUST, THE
REORGANIZED SALE DEBTORS, THE REORGANIZED STAND ALONE DEBTORS, THE BUYER OR ANY
OF THEIR PROPERTY; (d) ASSERTING ANY RIGHT OF SETOFF, DIRECTLY OR INDIRECTLY,
AGAINST ANY OBLIGATION DUE THE ESTATES, THE LIQUIDATION TRUST, THE REORGANIZED
SALE DEBTORS, THE REORGANIZED STAND ALONE DEBTORS, THE BUYER OR ANY OF THEIR
PROPERTY, EXCEPT AS CONTEMPLATED OR ALLOWED BY THE PLAN; (e) ACTING OR
PROCEEDING IN ANY MANNER, IN ANY PLACE WHATSOEVER, THAT DOES NOT CONFORM TO OR
COMPLY WITH THE PROVISIONS OF THE PLAN; AND (f) PROSECUTING OR OTHERWISE
ASSERTING ANY CLAIM OR INTEREST, INCLUDING ANY RIGHT, CLAIM OR CAUSE OF ACTION,
RELEASED PURSUANT TO THE PLAN. ADDITIONALLY, UNLESS OTHERWISE EXPLICITLY STATED
IN THE PLAN, THE INJUNCTION CONTEMPLATED BY THIS SECTION SHALL PROHIBIT THE
ASSERTION AGAINST THE LIQUIDATION TRUST OF ALL CLAIMS OR INTERESTS, IF ANY,
RELATED TO THE DEBTORS, THAT ARE NOT OTHERWISE DISCHARGED OR RELEASED BY THE
PLAN OR THE CONFIRMATION ORDER.
7.9 WAIVER OF CERTAIN CLAIMS.
Subject to the occurrence of the Initial Distribution Date,
and except as otherwise expressly provided in the Plan or Confirmation Order,
all Holders of Junior Notes Claims, Senior Notes Claims and REMIC Guarantee
Claims and Junior Notes Indenture Trustees, the Senior Notes Indenture Trustees,
the REMIC Trustees and the Resecuritization Trustee shall all be deemed, by
virtue of their receipt of distributions and/or other treatment contemplated
under the Plan, to have forever covenanted with each other to waive, release and
not to assert, sue, or otherwise seek any recovery from each other or the
Debtors, the Creditors' Committee, and each of those parties' officers,
directors, members, ex officio members and the Interested Party Professionals,
whether for tort, contract, violations of federal or state securities laws, or
otherwise, based upon any claim, right or cause of action related to the
construction and enforcement of the Junior Notes Indenture, the Senior Notes
Indenture or any obligations under the B-2 REMIC Guarantees and the
Resecuritization Note Put Option or any alleged priority or subordination in
respect of distributions received on account of Junior Notes Claims, Senior
Notes Claims or REMIC Guarantee Claims; provided further, however, that this
provision shall not operate as a waiver or release of any right that any party
in interest may have to object to any Claim, including Fee Claims, or any
Interest and shall not otherwise operate as a waiver or release of any objection
to Claims or Interests pending as of the Effective Date, regardless of whether
such objection was brought by the Debtors or any other party in interest.
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7.10 INTENTIONALLY OMITTED.
7.11 RELEASE OF LIENS AND PERFECTION OF LIENS.
Except as otherwise specifically provided in the Plan or in
any agreement, instrument or document created in connection with the Plan: (a)
each Holder of (i) a Secured Claim, (ii) a Claim that is purportedly secured
and/or (iii) a judgment, personal property or ad valorem tax, mechanics' or
similar Secured Claim, in each case regardless of whether such Claim is an
Allowed Claim, shall, on or immediately before the Effective Date and regardless
of whether such Claim has been scheduled or proof of such Claim has been filed:
(1) turn over and release to the Estates, the Liquidation Trust, the Reorganized
Sale Debtors, the Reorganized Stand Alone Debtors or the Buyer, as the case may
be, any and all property of the Debtors or the Estates that secures or
purportedly secures such Claim, or such Lien and/or Claim which shall
automatically, and without further action by the Estates, the Liquidation Trust,
the Reorganized Sale Debtors, the Reorganized Stand Alone Debtors or the Buyer,
be deemed released; and (2) execute such documents and instruments as the
Liquidation Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors or the Buyer require(s) to evidence such Claim Holder's release of such
property or Lien, and if such Holder violates the Confirmation Order and this
Plan by refusing to execute appropriate documents or instruments, the
Liquidation Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors or the Buyer may, in its or their discretion, file a copy of the
Confirmation Order which shall serve to release any Claim Holder's rights in
such property; and (b) on the Effective Date, all right, title and interest in
such property shall revert, vest or revest in accordance with this Plan, free
and clear of all Claims and Interests, including, without limitation, Liens,
escrows, charges, pledges, encumbrances and/or security interests of any kind;
provided, however, that the physical turnover of property described (1), above,
is necessary and required only to the extent the Holder is in possession or
control of the property that secures or purportedly secures such Claim.
Without limiting the automatic release provisions of the
immediately preceding paragraph: (a) no distribution hereunder shall be made to
or on behalf of any Claim Holder unless and until such Holder executes and
delivers to the Estates, the Liquidation Trust, the Reorganized Sale Debtors,
the Reorganized Stand Alone Debtors or the Buyer (respecting property to be
Transferred to the Buyer under the Sale Option) such release of Liens or
otherwise turns over and releases such Cash, pledge or other possessory Liens;
(b) such Holder that fails to execute and deliver such release of Liens within
ninety (90) days after the Effective Date shall be deemed to have no Claim
against the Debtors, the Estates, the Liquidation Trust, the Reorganized Sale
Debtors, the Reorganized Stand Alone Debtors or the Buyer or their assets or
property in respect of such Claim and shall not participate in any distribution
hereunder; and (c) the Estates, the Liquidation Trust, the Reorganized Sale
Debtors, the Reorganized Stand Alone Debtors or the Buyer (respecting property
to be Transferred to the Buyer under the Sale Option), who shall be deemed to be
appointed as attorney-in-fact for all such Holders of Lien Claims for the
purpose of releasing such Liens, shall be authorized to use, and all authorities
shall be required to accept, the Confirmation Order and the notice of Effective
Date as satisfaction of all Liens.
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Notwithstanding the foregoing two Paragraphs, any Lien
securing a Claim of a Holder, to the extent that it is valid, perfected and
unavoidable, (a) under the Stand Alone Option, remains attached to the property
that secures or purportedly secures such Claim or (b) under the Sale Option,
attaches to the proceeds of the Transaction (or other relevant Net Proceeds)
resulting from the property that secures or purportedly secures such Claim;
provided, however, that such Liens are immediately released in accordance with
the foregoing two Paragraphs when the Claim of such a Holder becomes (y) a
Disallowed Claim or (z) an Allowed Claim and payment on the Allowed Claim is
made.
7.12 INSURANCE PRESERVATION.
Nothing in the Plan, including any releases, shall diminish or
impair the Debtors' ability to enforce any insurance policies or other policies
of insurance that may cover insurance Claims or other Claims against the
Debtors, the Reorganized Sale Debtors, the Reorganized Stand Alone Debtors or
any other Person. All such insurance policies or other policies of insurance
that may cover Future Claims or other Claims against the Debtors, the
Liquidation Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors or any other Person shall remain in full force and effect. Under the
Sale Option, to the extent requested by the Liquidation Trust, and otherwise
appropriate under the circumstances, all policies of insurance vest in or
otherwise purchased by the Reorganized Sale Debtors shall list the Liquidation
Trust as co-insured.
ARTICLE VIII.
GENERAL PROVISIONS REGARDING TREATMENT OF CLAIMS AND
INTERESTS AND DISTRIBUTIONS UNDER THE PLAN
8.1 SPECIAL CONSIDERATIONS FOR DISTRIBUTIONS TO CLASSES 4A, 4B AND
4C.
Distributions for the benefit of beneficial holders of Senior
Notes, Junior Notes, B-2 REMIC Guarantees and the Resecuritization Note shall be
made to the Senior Notes Indenture Trustee, the Junior Notes Indenture Trustee,
the individual REMIC Trustees and the Resecuritization Trustee, as applicable.
The Senior Notes Indenture Trustee, the Junior Notes Indenture Trustee, the
individual REMIC Trustees and the Resecuritization Trustee shall, in turn,
promptly administer the distributions to the beneficial Holders of Allowed
Claims in Classes 4A, 4B and 4C, as applicable, in accordance with the Plan and
applicable transaction documents. None of the Senior Notes Indenture Trustee,
the Junior Notes Indenture Trustee, the individual REMIC Trustees and the
Resecuritization Trustee shall be required to give any bond or surety or other
security for the performance of their duties unless otherwise ordered by the
Bankruptcy Court; and in the event that such parties are so otherwise ordered,
all costs and expenses of procuring any such bond or surety shall be paid from
the distributions to the beneficial Holders of Senior Notes Claims, Junior Notes
Claims and REMIC Guarantee Claims. Additionally, to the extent necessary to
satisfy the charging liens of the Senior Notes Indenture Trustee, the Junior
Notes Indenture Trustee, the REMIC Trustee and the Resecuritization Trustee and
satisfy the fees and expenses of the Senior Notes Indenture Trustee, the Junior
Notes Indenture Trustee, the REMIC Trustee and the Resecuritization Trustee,
under the Stand Alone Option, at the
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request of the Senior Notes Indenture Trustee, the Junior Notes Indenture
Trustee, the REMIC Trustee or the Resecuritization Trustee, up to $750,000.00 in
Cash will be paid to the Holders of Senior Notes Claims and Junior Notes Claims
and up to $750,000.00 in Cash will be paid to the Holders of REMIC Guarantee
Claims, in lieu of an identical value of New Common Stock (maintaining a Pro
Rata distribution to all Allowed Claims), in order to pay the fees and expenses
of such trustees.
8.2 DISPUTED CLAIM RESERVES AND STAND ALONE VOTING TRUST.
(a) ESTABLISHMENT OF DISPUTED CLAIM RESERVES FOR
CASH DISTRIBUTIONS.
On the Initial Distribution Date (or on any other
date on which distributions for any particular Class (or group of Classes in the
case of Class 4) of Claims are made pursuant to the Plan by the Liquidation
Trust), and in connection with making all distributions required to be made on
any such date under the Plan, the Liquidation Trust (under the Sale Option) or
the Reorganized Stand Alone Debtors (under the Stand Alone Option) shall
establish, for record keeping purposes only, a separate Disputed Claim reserve
on account of distributions of Cash for each of the relevant Classes (or group
of Classes in the case of Class 4), as necessary pursuant to the Plan.
(b) ESTABLISHMENT OF THE STAND ALONE VOTING
TRUST FOR NEW COMMON STOCK AND NEW WARRANT
DISTRIBUTION.
Under the Stand Alone Option, on the Effective Date,
there shall be established the Stand Alone Voting Trust pursuant to the Stand
Alone Voting Trust Agreement. The purpose of the Stand Alone Voting Trust shall
be to hold the New Common Stock and New Warrants, if applicable, in reserve for
Disputed Claims or Interests for each of the relevant Classes (or group of
Classes in the case of Class 4), as necessary pursuant to the Plan. Pursuant to
the Stand Alone Voting Trust Agreement, there will be three (3) independent and
disinterested Persons designated as the Stand Alone Voting Trustees by the
Creditors' Committee with the consent of the Debtors and Berkshire, whose
approval shall not be unreasonably withheld, and identified in the Plan
Supplement; provided, however, that an outstanding Fee Claim shall not render a
Person ineligible to serve as a Stand Alone Voting Trustee. The Reorganized
Stand Alone Debtors shall be responsible for and shall indemnify the Stand Alone
Voting Trust for any reasonable costs of administration, including, without
limitation, the payment of fees earned by the Stand Alone Voting Trustees under
the Stand Alone Voting Trust Agreement and reasonable professional costs. Upon
allowance of any Disputed Claim or Interest for which New Common Stock or New
Warrants is held in the Stand Alone Voting Trust, an appropriate amount of such
New Common Stock or New Warrants shall promptly be released to the Reorganized
Stand Alone Debtors for distribution to the Holder of the Allowed Claim or
Interest pursuant to the terms of the Plan.
(c) AMOUNTS TO BE RESERVED.
The Liquidation Trust and/or the Stand Alone Voting
Trust shall reserve the Ratable proportion of all Cash, New Common Stock, New
Warrants or other property
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allocated for distribution on account of each Disputed Claim based upon the
asserted amount of each such Disputed Claim, or such lesser amount as may be
agreed to by the Holder of the Claim on one hand and the Liquidation Trust or
the Stand Alone Voting Trust on the other hand, as applicable, or as may
otherwise be determined by order of the Bankruptcy Court. All Cash or other
property allocable to the relevant Class (or group of Classes in the case of
Class 4) hereunder shall be distributed by the Liquidation Trust to the relevant
Disputed Claim reserve on the Initial Distribution Date (or such other date on
which distributions for any particular Class of Claims are made pursuant to the
Plan). All New Common Stock or New Warrants allocable to the relevant Class (or
group of Classes in the case of Class 4) hereunder shall be distributed by the
Stand Alone Voting Trustees to the Stand Alone Voting Trust on the Initial
Distribution Date (or such other date on which distributions for any particular
Class of Claims are made pursuant to the Plan). To the extent that the property
placed in a Disputed Claim reserve consists of Cash, that Cash shall be
deposited in an interest-bearing account at a qualified institution, consistent
with the Liquidation Trust Agreement.
(d) DISTRIBUTION.
Payments on any Disputed Claim that becomes an
Allowed Claim shall be distributed on the first Quarterly Distribution Date
after the Claim is Allowed. Distributions shall be made only to the extent of
the aggregate distributions that the Holder of any such Allowed Claim would have
received had such Claim been Allowed as of the Effective Date (less any taxes
paid with respect to amounts held in the Disputed Reserves). No interest shall
accrue or be paid on the unpaid amount of any distribution paid on a Quarterly
Distribution Date. Distributions to each Holder of a Disputed Claim that has
become an Allowed Claim (and to the extent that the holder of the Disputed Claim
has not received prior distributions on account of that Claim) shall be made in
accordance with the provisions of the Plan governing the Class (or group of
Classes in the case of Class 4) of Claims in which the Claim is classified.
(e) TERMINATION OF DISPUTED CLAIM RESERVE OR
STAND ALONE VOTING TRUST.
Each Disputed Claim reserve shall be closed and
extinguished by the Liquidation Trustee when all distributions and other
dispositions of Cash or other property required to be made therefrom under the
Plan and the Liquidation Trust Agreement have been made. Upon closure of a
Disputed Claim reserve, all Cash and other property held in that Disputed Claim
reserve shall revest in the Liquidation Trust and such Cash and property shall
be Ratably distributed to the other Holders of Allowed Claims in the Class (or
group of Classes) in respect of which such Disputed Claims reserve was created.
The Stand Alone Voting Trust shall be closed and extinguished by the Stand Alone
Voting Trustees when all distributions of New Common Stock and New Warrants
required to be made under the Plan have been made.
(f) LIMITATION OF LIABILITY FOR FUNDING THE
DISPUTED CLAIM RESERVE.
Except as expressly set forth in the Plan, the
Liquidation Trust shall have no duty to fund the Disputed Reserves.
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8.3 TRANSMITTAL OF DISTRIBUTIONS AND NOTICES.
Any property or notice which a Person is or becomes entitled
to receive pursuant to the Plan may be delivered by regular mail, postage
prepaid, in an envelope addressed to that Person's Distribution Address.
Property distributed in accordance with this Section shall be deemed delivered
to such Person regardless of whether such property is actually received by that
Person.
A Holder of a Claim or Interest may designate a different
Distribution Address by notifying, after the Effective Date, the Liquidation
Trustee and prior to the Effective Date, the Debtors, of that address in
writing. Any change of Distribution Address must be provided to the Liquidation
Trustee or Debtors, as applicable, by registered mail in order to be effective.
Such notification shall be effective only upon receipt.
Distributions and Notices to the Holders of REMIC Guarantee
Claims shall be delivered by regular mail, postage prepaid, in an envelope
addressed to JPMorgan Chase Bank, 4 New York Plaza, 15th Floor, New York, NY
10004, Attention: James R. Lewis, Esq., Tel: (212) 623-6759, Fax: (212)
623-6165.
8.4 UNCLAIMED DISTRIBUTIONS.
Unclaimed Property shall be forfeited by the Holder entitled
thereto, whereupon all rights, titles and interests in and to the Unclaimed
Property shall immediately and irrevocably revest in the Estate of the
Reorganized Debtors or the Liquidation Trust, as appropriate, the Holder of the
Allowed Claim previously entitled to such Unclaimed Property shall cease to be
entitled thereto, and such Unclaimed Property shall be Ratably distributed to
the other Holders of Allowed Claims in the same Class (or group of Classes). A
Claim and the Unclaimed Property distributed on account of such Claim shall not
escheat to any federal, state or local government or other entity by reason of
the failure of its Holder to claim a distribution in respect of such Claim.
8.5 SETOFFS.
The Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option) 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 claimant, 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 such claimant.
8.6 WITHHOLDING TAXES AND EXPENSES OF DISTRIBUTION.
Any federal, state or local withholding taxes or other amounts
required to be withheld under applicable law shall be deducted from
distributions hereunder. All Holders of Claims or Interests shall be required to
provide any information necessary to effect the
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withholding of such taxes. In addition, all distributions under the Plan shall
be net of the actual and reasonable costs of making such distributions.
8.7 ALLOCATION OF PLAN DISTRIBUTIONS BETWEEN PRINCIPAL AND
INTEREST.
To the extent that any Allowed Claim entitled to a
distribution under the Plan is comprised of indebtedness and accrued but unpaid
interest thereon, such distribution shall, for federal income tax purposes, be
allocated to the principal amount of the Claim first and then, to the extent the
consideration exceeds the principal amount of the Claim, to the portion of such
Claim representing accrued but unpaid interest.
8.8 DISPUTED IDENTITY OF HOLDER.
If any dispute arises as to the identity of a Holder of an
Allowed Claim who is to receive any distribution, the Liquidation Trustee may,
in lieu of making such distribution to such Person, make such distribution into
an escrow account until the disposition thereof shall be determined by the
Bankruptcy Court order or by written agreement among the interested parties to
such dispute; provided, however, that if the dispute remains unresolved by Final
Order for more than ninety (90) days after the relevant Distribution Date, the
property which is the subject of the dispute shall irrevocably become Unclaimed
Property.
8.9 TRANSFERS OF CLAIMS.
As of the close of business on the Record Date, the various
transfer registers for each of the Classes of Claims or Interests as maintained
by the Debtors, or their respective agents, shall be deemed closed, and there
shall be no further changes in the Holders of record of any of the Claims or
Interests. No party, including but not limited to the Debtors, the Liquidation
Trust (under the Sale Option) and the Reorganized Stand Alone Debtors (under the
Stand Alone Option), shall have any obligation to recognize any transfer of the
Claims or Interests occurring after the Record Date unless notice of the
transfer of such Claim or Interest, in form and substance satisfactory to the
Debtors, the Liquidation Trust (under the Sale Option) or the Reorganized Stand
Alone Debtors (under the Stand Alone Option), as appropriate, shall have been
received by the Debtors or the Liquidation Trustee, as appropriate, prior to the
Record Date. Subject to the immediately preceding sentence, only those Holders
of record stated on the transfer ledgers as of the close of business on the
Record Date, to the extent applicable, shall be entitled to be recognized for
all purposes hereunder.
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8.10 METHOD OF CASH DISTRIBUTIONS.
Any Cash payment to be made by the Liquidation Trust (under
the Sale Option) or the Reorganized Stand Alone Debtors (under the Stand Alone
Option) pursuant to the Plan may be made, at the sole discretion of the
Liquidation Trust (under the Sale Option) or the Reorganized Stand Alone Debtors
(under the Stand Alone Option), by draft, check, wire transfer, or as otherwise
required or provided in any relevant agreement or applicable law. Any payment or
distribution due on a day other than a Business Day shall be made, without
interest, on the next Business Day.
8.11 DE MINIMIS DISTRIBUTIONS.
No Cash payment in an amount less than fifty dollars ($50.00)
shall be made by the Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option) to any Holder of
a Claim or Interest unless a request therefor is made in writing to the
Liquidation Trust (under the Sale Option) or the Reorganized Stand Alone Debtors
(under the Stand Alone Option) prior to one (1) year after the Effective Date.
Cash that otherwise would be payable under the Plan but for this Section 8.11
shall be reserved and distributed with future distributions, if any, that,
collectively, exceed fifty dollars ($50.00). Distributions of cash that
otherwise would be payable under the Plan to a Holder but for this Section 9.14
that never, collectively, exceed fifty dollars ($50.00) as described in the
foregoing sentence and for which a request is not made within the one (1) year
deadline shall become Unclaimed Property.
8.12 NO DISTRIBUTION IN EXCESS OF ALLOWED AMOUNT OF CLAIM.
Notwithstanding anything to the contrary herein, no Holder of
an Allowed Claim shall receive in respect of such Claim any distribution in
excess of the allowed amount of such Claim.
8.13 EXEMPTION FROM CERTAIN TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code: (a) the
issuance, transfer or exchange of any securities, instruments or documents; (b)
the creation or release of any other Lien, mortgage, deed of trust or other
security interest; or (c) the making or assignment of any lease or sublease or
the making or delivery of any deed or other instrument of transfer under,
pursuant to, in furtherance of or in connection with the Plan or the sale of any
assets of the Debtors or the Estates, including the Purchase Agreement, any
deeds, releases, bills of sale or assignments executed in connection with the
Plan or the Confirmation Order, shall not be subject to any stamp tax, transfer
tax, intangible tax, recording fee, or similar tax, charge or expense to the
fullest extent provided for under section 1146(c) of the Bankruptcy Code.
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ARTICLE IX.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
9.1 ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES.
Under the Sale Option, on the Effective Date, and to the
extent permitted by applicable law, (a) any and all executory contracts and
unexpired leases of any Debtor that are listed on Sections 1.09(a) or 1.09(b) of
Sellers' Disclosure Schedule as being assumed and assigned to the Buyer pursuant
to the Purchase Agreement shall be deemed assumed and assigned to the Buyer
pursuant to the Plan in accordance with the Purchase Agreement and (b) (i) such
contracts or leases as are listed on the Executory Contract Schedule filed by
the Debtors (which may be modified by the Liquidation Trust up to sixty (60)
days after the Effective Date), (ii) the Servicing Agreements, and (iii) any and
all executory contracts or unexpired leases assumed prior to entry of the
Confirmation Order shall be deemed assumed pursuant to the provisions of section
365 and section 1123 of the Bankruptcy Code as of the Effective Date. All other
executory contracts and unexpired leases of each of the Debtors shall be deemed
rejected in accordance with the provisions of section 365 and section 1123 of
the Bankruptcy Code; provided, however, that any and all executory contracts or
unexpired leases which are the subject of separate motions filed pursuant to
section 365 of the Bankruptcy Code by the Debtors prior to the commencement of
the Confirmation Hearing shall not be deemed rejected and shall be treated as so
ordered by the Bankruptcy Court in an order entered pursuant to the motion.
Subject to the aforementioned proviso, the Confirmation Order shall constitute
an order of the Court approving all such assumption and assignments and
rejections pursuant to section 365 of the Bankruptcy Code subject to the
occurrence of the Effective Date.
Under the Stand Alone Option, on the Effective Date, and to
the extent permitted by applicable law, (a) such contracts or leases as are
listed on the Executory Contract Schedule filed by the Debtors, which may be
modified by the Reorganized Stand Alone Debtors up to sixty (60) days after the
Effective Date, and (b) any and all executory contracts or unexpired leases
rejected prior to entry of the Confirmation Order shall be rejected pursuant to
the provisions of section 365 and section 1123 of the Bankruptcy Code as of the
Effective Date, if not already rejected as of a prior date. All other executory
contracts and unexpired leases of each of the Debtors shall be deemed assumed in
accordance with the provisions of section 365 and section 1123 of the Bankruptcy
Code as of the Effective Date; provided, however, that any and all executory
contracts or unexpired leases which are the subject of separate motions filed
pursuant to section 365 of the Bankruptcy Code by the Debtors prior to the
commencement of the Confirmation Hearing shall not be deemed assumed and shall
be treated as so ordered by the Bankruptcy Court in an order entered pursuant to
the motion. Subject to the aforementioned proviso, the Confirmation Order shall
constitute an order of the Court approving all such assumption and assignments
and rejections pursuant to section 365 of the Bankruptcy Code. Contracts or
leases entered into after the Petition Date will be performed by the Reorganized
Stand Alone Debtors in the ordinary course of their businesses.
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9.2 BAR DATE FOR REJECTION DAMAGES.
If the rejection of any executory contract or unexpired lease
under the Plan gives rise to a Claim by the non-Debtor party or parties to such
contract or lease, such Claim, to the extent that it is timely filed and is an
Allowed Claim, shall be classified in Class 4E; provided, however, that the
Unsecured Claim arising from such rejection shall be forever barred and shall
not be enforceable against the Debtors, the Reorganized Sale Debtors, the
Reorganized Stand Alone Debtors, the Liquidation Trust, their successors or
properties, unless a proof of such Claim is filed and served on the Liquidation
Trust (under the Sale Option) or the Reorganized Stand Alone Debtors (under the
Stand Alone Option) and the Claims Agent within thirty (30) days after the date
of notice of the entry of the order of the Bankruptcy Court rejecting the
executory contract or unexpired lease which may include, if applicable, the
Confirmation Order.
9.3 PROCEDURES FOR THE DETERMINATION OF CURE AMOUNTS.
Unless otherwise noted in the Executory Contract Schedule or
the Purchase Agreement, or any schedule thereto, the cure amount pursuant to
section 365(b)(1) of the Bankruptcy Code for any executory contracts or
unexpired leases shall be $0.00. Any dispute regarding (i) the nature or amount
of any payment necessary to satisfy the listed cure amount under the contract or
lease to be assumed or assumed and assigned, (ii) the ability of the Debtors,
the Buyer or any other assignee, as the case may be, to provide "adequate
assurance of future performance," within the meaning of section 365 of the
Bankruptcy Code, under the contract or lease to be assumed or assumed and
assigned or (iii) any other matter pertaining to assumption or assumption and
assignment under section 365 of the Bankruptcy Code shall be forever barred and
shall not be enforceable against the Debtors, the Liquidation Trust, the
Reorganized Sale Debtor, the Reorganized Stand Alone Debtors, their successors
or properties, unless a motion or objection, as appropriate, is filed and served
on the Debtors (prior to the Effective Date), the Liquidation Trust and the
Buyer (under the Sale Option) or the Reorganized Stand Alone Debtors (under the
Stand Alone Option) within thirty (30) days after the date of notice of proposed
assumption or assumption and assignment, or such later date as allowed by the
Bankruptcy Court. The Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option), and not the
Buyer, shall be responsible for paying any cure costs associated with the
assumption and assignment of any executory contract or unexpired lease assumed
and assigned to the Buyer, whether pursuant to the Plan or pursuant to any other
order of the Bankruptcy Court. The Liquidation Trust (under the Sale Option) and
the Reorganized Stand Alone Debtors (under the Stand Alone Option) shall have
the right to dispute any asserted cure amounts, including any amounts noted in
the Executory Contract Schedule or the Purchase Agreement.
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ARTICLE X.
DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS AND INTERESTS
10.1 OBJECTIONS TO CLAIMS AND INTERESTS.
The Claims/Interests Objection Deadline shall be six (6)
months after the Effective Date; provided, however, that the last day for filing
Avoidance Actions against a Holder of a Claim or Interest shall be November 15,
2004. Notwithstanding any of the foregoing, the Reorganized Stand Alone Debtors
or the Liquidation Trustee, as appropriate, may request from the Bankruptcy
Court an extension of the Claims/Interests Objection Deadline, which such
extended date shall become the new Claims/Interests Objection Deadline.
The Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option) have the
exclusive responsibility for reviewing and objecting to the allowance of any
Claim or Interest filed in the Chapter 11 Cases. The Liquidation Trust or the
Reorganized Stand Alone Debtors, as appropriate, shall have until the
Claims/Interests Objection Deadline to file objections to the Claims and
Interest in the Chapter 11 Cases. All objections shall be litigated to a Final
Order; provided, however, that the Liquidation Trust or the Reorganized Stand
Alone Debtors, as the case may be, may compromise and settle any objections to
Claims or Interests, subject to the provisions of this Article X without further
order of the Bankruptcy Court; and further provided, however, that distributions
may be made to a Holder of a Claim or Interest prior to the expiration of the
Claims/Interests Objection Deadline if the Liquidation Trustee or the
Reorganized Stand Alone Debtors, as appropriate, reasonably believes that no
basis exists for objection to such Holder's Claim or Interest. Notwithstanding
the foregoing, nothing in this Plan shall be interpreted to operate as a waiver
or release of (x) any right that any party in interest may have to object to (a)
any Claim or Interest through the Effective Date or (b) any Fee Claim after the
Effective Date; or (y) any objection to Claims or Interests pending as of the
Effective Date, regardless of whether such objection was brought by the Debtors
or any other party in interest.
Objections to Claims or Interests shall not be subject to any
defense, including, without limitation, res judicata, estoppel or any other
defense because of the confirmation of the Plan and all such rights are
expressly preserved and reserved by the Plan for the Debtors, their Estates, the
Liquidation Trust (under the Sale Option) and the Reorganized Stand Alone
Debtors (under the Stand Alone Option). Additionally, the rights of the
Liquidation Trust (under the Sale Option) or the Reorganized Stand Alone Debtors
(under the Stand Alone Option) to amend, modify or supplement any objection to a
particular Claim or Interest to include relief pursuant to section 502(d) of the
Bankruptcy Code are hereby preserved until sixty (60) days after the entry of a
Final Order against a Holder of such Claim.
10.2 ESTIMATION OF CLAIMS OR INTERESTS.
Through the Claims/Interests Objection Deadline, the
Liquidation Trust (under the Sale Option) or the Reorganized Stand Alone Debtors
(under the Stand Alone Option) may request that the Bankruptcy Court enter an
Estimation Order fixing the value of, pursuant to
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section 502(c) of the Bankruptcy Code, any Disputed Claim or Interest,
regardless of whether a Debtor has previously objected to such Claim or Interest
or whether the Bankruptcy Court has ruled on any such objection, and the
Bankruptcy Court will retain jurisdiction to estimate any Disputed Claim or
Interest at any time during litigation concerning any objection to any Disputed
Claim or Interest, including during the pendency of any appeal relating to any
such objection. In the event that the Bankruptcy Court enters an Estimation
Order estimating any Disputed Claim or Interest, the amount of such estimation
will constitute either the allowed amount of such Claim or Interest or a maximum
limitation on such Claim or Interest, as determined by the Bankruptcy Court. If
the estimated amount constitutes a maximum limitation on such Claim or Interest,
the Liquidation Trust or the Reorganized Stand Alone Debtors (as appropriate)
may elect to pursue any supplemental proceedings to object to any ultimate
payment on such Claim or Interest. All of the aforementioned Claims and
Interests objection, estimation and resolution procedures are cumulative and are
not necessarily exclusive of one another. Claims or Interests may be estimated
and thereafter resolved by any mechanism permitted under the Bankruptcy Code or
the Plan.
10.3 AMENDMENTS TO CLAIMS OR INTERESTS.
After the Confirmation Date, a Claim or Interest may not be
filed or amended without the authorization of the Bankruptcy Court and, even
with such Bankruptcy Court authorization, may be amended by the Holder of such
Claim or Interest solely to decrease, but not to increase, unless otherwise
provided by the Bankruptcy Court, the amount or priority.
10.4 AUTHORITY TO SETTLE DISPUTED CLAIMS OR INTERESTS.
From and after the Effective Date, the Liquidation Trust
(under the Sale Option) or the Reorganized Stand Alone Debtors (under the Stand
Alone Option) shall be authorized with respect to those Claims or Interests
which are not allowed by Final Order of the Bankruptcy Court, pursuant to
Bankruptcy Rule 9019 and section 105(a) of the Bankruptcy Code, to compromise
and settle Disputed Claims with a Disputed Amount in excess of $25,000.00, upon
Bankruptcy Court approval of such settlement. Notwithstanding any prior order of
the Bankruptcy Court or the provisions of Bankruptcy Rule 9019, the Liquidation
Trust or the Reorganized Stand Alone Debtors, as appropriate, may settle or
compromise any Disputed Claim with a Disputed Amount of $25,000.00 or less
without approval of the Bankruptcy Court. This provision shall not prohibit the
surrender of REMIC Certificates or interests therein to the Liquidation Trust
(under the Sale Option) or the Reorganized Sale Debtors (under the Stand Alone
Option) in connection with the resolution of Disputed Class 4C Claims.
10.5 NO RECOURSE.
Notwithstanding that the allowed amount of any particular
Disputed Claim is reconsidered under the applicable provisions of the Bankruptcy
Code and Bankruptcy Rules or is allowed in an amount for which there is
insufficient value in the relevant fund or reserve to provide a recovery equal
to that received by other Holders of Allowed Claims in the relevant Class, no
Claim or Interest Holder shall have recourse to the Debtors, the Liquidation
Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone Debtors, the
Creditors' Committee or
71
any member or ex officio member thereof, any of the Interested Party
Professionals, the Holder of any other Claim or Interest, or any of their
respective property. However, nothing in the Plan shall modify any right of a
Holder of a Claim or Interest under section 502(j) of the Bankruptcy Code. THUS,
THE BANKRUPTCY COURT'S ENTRY OF AN ESTIMATION ORDER MAY LIMIT THE DISTRIBUTION
TO BE MADE ON INDIVIDUAL DISPUTED CLAIMS OR INTERESTS, REGARDLESS OF THE AMOUNT
FINALLY ALLOWED ON ACCOUNT OF SUCH DISPUTED CLAIMS OR INTERESTS.
ARTICLE XI.
ADMINISTRATIVE PROVISIONS
11.1 RETENTION OF JURISDICTION.
Notwithstanding confirmation of the Plan or occurrence of the
Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over
all matters arising out of or related to the Chapter 11 Cases and the Plan to
the fullest extent legally permissible, including, without limitation, for the
following purposes:
(a) to determine the allowance, classification, or
priority of Claims upon objection by the Debtors, the
Creditors' Committee, the Liquidation Trust or the
Liquidation Trustee, or any other party in interest
entitled to file an objection, and the validity,
extent, priority and nonavoidability of consensual
and nonconsensual Liens and other encumbrances;
(b) to issue injunctions or take such other actions or
make such other orders as may be necessary or
appropriate to restrain interference with the Plan or
its execution or implementation by any Person, to
construe and to take any other action to enforce and
execute the Plan, the Confirmation Order, or any
other order of the Bankruptcy Court, to issue such
orders as may be necessary for the implementation,
execution, performance and consummation of the Plan
and all matters referred to herein, and to determine
all matters that may be pending before the Bankruptcy
Court in the Chapter 11 Cases on or before the
Effective Date with respect to any Person;
(c) to protect the property of the Estates, the
Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors, Liquidation Trust or the Buyer as the case
may be, including Litigation Claims, from claims
against, or interference with, such property,
including actions to quiet or otherwise clear title
to such property or to resolve any dispute concerning
Liens, security interests or encumbrances on any
property of The Debtors, the Estates, the Liquidation
Trust, the Reorganized Sale Debtors or the
Reorganized Stand Alone Debtors;
(d) to determine any and all applications for allowance
of Fee Claims;
72
(e) to determine any Priority Tax Claims, Priority
Non-Tax Claims, Administrative Claims or any other
request for payment of Claims, including both fees
and expenses, entitled to priority under section
507(a) of the Bankruptcy Code;
(f) to resolve any dispute arising under or related to
the implementation, execution, consummation or
interpretation of the Plan and the making of
distributions hereunder, including any and all
disputes regarding the Purchase Agreement, as
provided in section 10.13 of the Purchase Agreement;
(g) to determine any and all motions related to the
rejection, assumption or assignment of executory
contracts or unexpired leases, or to determine any
motion to reject an executory contract or unexpired
lease pursuant to Article IX of the Plan;
(h) except as otherwise provided herein, to determine all
applications, motions, adversary proceedings,
contested matters, actions, and any other litigated
matters instituted in and prior to the closing of the
Chapter 11 Cases, including any remands;
(i) to enter a Final Order closing the Chapter 11 Cases;
(j) to modify the Plan under section 1127 of the
Bankruptcy Code, remedy any defect, cure any
omission, or reconcile any inconsistency in the Plan
or the Confirmation Order so as to carry out its
intent and purposes;
(k) to issue such orders in aid of consummation of the
Plan and the Confirmation Order notwithstanding any
otherwise applicable non-bankruptcy law, with respect
to any Person, to the full extent authorized by the
Bankruptcy Code;
(l) to determine any tax liability pursuant to section
505 of the Bankruptcy Code;
(m) to enter and implement such orders as may be
appropriate in the event the Confirmation Order is
for any reason stayed, revoked, modified or vacated;
(n) to resolve any disputes concerning whether a Person
had sufficient notice of the Chapter 11 Cases, the
applicable Claims bar date, the hearing to consider
approval of the Disclosure Statement or the
Confirmation Hearing or for any other purpose;
(o) to resolve any dispute or matter arising under or in
connection with any order of the Bankruptcy Court
entered in the Chapter 11 Cases;
73
(p) to authorize sales of assets as necessary or
desirable and resolve objections, if any, to such
sales;
(q) to hear and resolve Litigation Claims;
(r) to resolve any disputes concerning any release,
discharge, injunction, exculpation or other waivers
and protections provided in the Plan;
(s) to approve, if necessary, any distributions, or
objections thereto, under the Plan;
(t) to approve any Claims settlement entered into or
offset exercised by the Liquidation Trust and the
Liquidation Trustee;
(u) to resolve any dispute or matter arising under or in
connection with the Liquidation Trust;
(v) to oversee any dispute concerning improper or
excessive draws under letters of credit issued for
the account of the Debtors; and
(w) to determine such other matters, and for such other
purposes, as may be provided in the Confirmation
Order or as may be authorized under provisions of the
Bankruptcy Code.
If the Bankruptcy Court abstains from exercising or declines
to exercise jurisdiction, or is otherwise without jurisdiction over any matter
arising out of the Chapter 11 Cases, including the matters set forth in this
Article XI, this Article shall not prohibit or limit the exercise of
jurisdiction by any other court having competent jurisdiction with respect to
such matter. Notwithstanding any provisions of the Plan, the Bankruptcy Court
shall have concurrent but not exclusive jurisdiction over the prosecution of
Causes of Actions, including but not limited to Avoidance Actions.
11.2 INTENTIONALLY OMITTED.
11.3 AMENDMENTS.
(a) PRECONFIRMATION AMENDMENT.
The Debtors may modify the Plan at any time prior to the entry
of the Confirmation Order, provided that (i) the Plan, as modified, and the
Disclosure Statement pertaining thereto meet applicable Bankruptcy Code
requirements and (ii) the Creditors' Committee, Berkshire and the Buyer (under
the Sale Option) consent to such modifications, such consent not being
unreasonably withheld.
74
(b) POSTCONFIRMATION/PRECONSUMMATION AMENDMENT NOT
REQUIRING RESOLICITATION.
After the entry of the Confirmation Order and before
substantial consummation of the Plan, the Debtors may modify the Plan to remedy
any defect or omission or to reconcile any inconsistencies in the Plan or in the
Confirmation Order, as may be necessary to carry out the purposes and effects of
the Plan, provided that: (i) the Debtors obtain approval of the Bankruptcy Court
for such modification, after notice and a hearing; (ii) the Creditors'
Committee, Berkshire and the Buyer (under the Sale Option) consent, such consent
not being unreasonably withheld; and (iii) such modification shall not
materially and adversely affect the interests, rights, treatment or
distributions of any Class of Allowed Claims or Interests under the Plan. Any
waiver under Section 5.3 hereof shall not be considered to be a modification of
the Plan.
(c) POSTCONFIRMATION/PRECONSUMMATION AMENDMENT REQUIRING
RESOLICITATION.
After the Confirmation Date and before substantial
consummation of the Plan, the Debtors may modify the Plan in a way that
materially or adversely affects the interests, rights, treatment, or
distributions of a Class of Claims or Interests, provided that: (i) the Plan, as
modified, meets applicable Bankruptcy Code requirements; (ii) the Debtors obtain
Bankruptcy Court approval for such modification, after notice and a hearing;
(iii) the Plan as modified complies with the Bankruptcy Code and Bankruptcy
Rules; (iv) the Debtors comply with section 1125 of the Bankruptcy Code with
respect to the Plan as modified; and (v) the Creditors' Committee, Berkshire and
the Buyer (under the Sale Option), such consent not being unreasonably withheld.
11.4 SEVERABILITY OF PLAN PROVISIONS.
If, prior to the Confirmation Date, any term or provision of
the Plan is determined by the Bankruptcy Court to be invalid, void or
unenforceable, the Bankruptcy Court will have the power to alter and interpret
such term or provision and 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 will then be
applicable as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions of the
Plan will remain in full force and effect and will in no way be affected,
impaired or invalidated by such holding, alteration or interpretation. The
Confirmation Order will constitute a judicial determination and will provide
that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
11.5 SUCCESSORS AND ASSIGNS.
The rights, benefits and obligations of any Person named or
referred to in the Plan shall be binding on, and shall inure to the benefit of,
the heirs, executors, administrators, successors and/or assigns of such Person.
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11.6 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS.
Each Debtor, each Reorganized Sale Debtor, each Reorganized
Stand Alone Debtor, and the Liquidation Trust shall be authorized to execute,
deliver, file, or record such documents, contracts, instruments, and other
agreements and take such other actions as may be reasonably necessary to
effectuate and further evidence the terms and conditions of the Plan.
11.7 PLAN SUPPLEMENT.
The Plan Supplement comprised of, among other things, the
forms of the documents related to the Amended Certificates of Incorporation,
Amended Bylaws, the Liquidation Trust Agreement, the Stand Alone Voting Trust
Agreement, the Executory Contract Schedule, the Exit Facility Agreement and, to
the extent necessary to implement the Plan, proposed amendments to the
Reorganized Sale Debtors' organizational documents, to the extent not filed
simultaneously with the Plan and Disclosure Statement, shall be filed with the
Bankruptcy Court at least five (5) Business Days prior to the deadline
established for voting on this Plan. Upon its filing, the Plan Supplement may be
inspected in the offices of the Clerk of the Bankruptcy Court during normal
business hours. A copy of the Plan Supplement shall be mailed to the Creditors'
Committee, and any Holder of a Claim or Interest that makes a specific written
request for such Plan Supplement to the Debtors. The documents contained in the
Plan Supplement shall be approved by the Bankruptcy Court pursuant to the
Confirmation Order.
11.8 CONFIRMATION ORDER AND PLAN CONTROL.
To the extent the Confirmation Order and/or this Plan is
inconsistent with the Disclosure Statement, any other agreement entered into
between or among any Debtors, or any of them and any third party, the Plan
controls the Disclosure Statement and any such agreements, and the Confirmation
Order controls the Plan, the Disclosure Statement and any such agreements;
provided, however, that the Purchase Agreement is not controlled by the Plan,
the Disclosure Statement or anything contained in the Plan Supplement.
11.9 PAYMENT OF STATUTORY FEES.
All fees payable pursuant to section 1930 of title 28 of the
United States Code as Administrative Fees under the Plan, as determined by the
Bankruptcy Court at the Confirmation Hearing, shall be paid in Cash on the
Effective Date, or as soon as reasonably practicable thereafter, and neither the
Debtors, their Estates, the Reorganized Sale Debtors, the Reorganized Stand
Alone Debtors nor the Liquidation Trust shall thereafter be liable for the
payment of additional fees under section 1930 of title 28 of the United States
Code other than with respect to the consolidated Chapter 11 Case which will
continue after the Effective Date.
11.10 WITHDRAWAL OF PLAN.
The Debtors reserve the right, subject to the Purchase
Agreement, in the exercise of their reasonable discretion, to revoke and
withdraw or to modify the Plan at any time prior to
76
the Confirmation Date or, if the Debtors are for any reason unable to consummate
the Plan after the Confirmation Date, at any time up to the Effective Date. If
the Debtors revoke or withdraw the Plan, (a) nothing contained in the Plan shall
be deemed to constitute a waiver or release of any claims by or against the
Debtors or the Creditors' Committee or to prejudice in any manner the rights of
the Debtors, the Creditors' Committee or any Person in any further proceeding
involving the Debtors or the Creditors' Committee and (b) the result shall be
the same as if the Confirmation Order were not entered, the Plan was not filed
and the Effective Date did not occur.
11.11 PAYMENT DATES.
Whenever any payment to be made under the Plan is due on a day
other than a Business Day, such payment will instead be made, without interest,
on the next Business Day or as soon thereafter as practicable.
11.12 NOTICES.
Any notice, request or demand given or made under this Plan or
under the Bankruptcy Code or the Bankruptcy Rules shall be in writing and shall
be hand delivered or sent by a reputable overnight courier service, and shall be
deemed given when received at the following addresses whether hand delivered or
sent by overnight courier service:
IF TO THE DEBTORS: IF TO THE CREDITORS' COMMITTEE:
MORRIS, NICHOLS, ARSHT & TUNNELL MCCARTER & ENGLISH, LLP
Robert J. Dehney, Esq. William F. Taylor, Jr. , Esq.
Derek C. Abbott, Esq. 919 Market Street, Suite 1800
Daniel B. Butz, Esq. Wilmington, Delaware 19801
1201 North Market Street Facsimile: (302) 984-6399
P.O. Box 1347
Wilmington, Delaware 19899-1347
Facsimile: (302) 658-3989
- and -
- and -
RAYBURN COOPER & DURHAM, P.A.
C. Richard Rayburn, Jr. , Esq. KING & SPALDING LLP
Albert F. Durham, Esq. Robert J. Stark, Esq.
Patricia B. Edmondson, Esq. 1185 Avenue of the Americas
1200 Carillon, 227 West Trade Street New York, New York 10036
Charlotte, North Carolina 28202-1675 Facsimile: (212) 556-2222
Facsimile: (704) 377-1897
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IF TO THE BUYER OR BERKSHIRE:
CLAYTON HOMES, INC.
Kevin Clayton
500 Alcoa Trail
P.O. Box 9790
Maryville, TN 37804
Facsimile: (865) 380-3750
-and-
MUNGER, TOLLES & YOUNG CONAWAY
OLSON LLP STARGATT & TAYLOR, LLP
Thomas B. Walper, Esq. Michael R. Nestor, Esq.
355 S. Grand Avenue The Brandywine Building
Los Angeles, CA 90071 1000 West Street, 17th Floor
Facsimile: (213) 687-3702 Wilmington, DE 19801
Facsimile: (302) 571-1253
Notwithstanding anything to the contrary provided herein, all
notices concerning this Plan shall be served upon the entities prescribed and in
the manner prescribed under the Bankruptcy Code and the Bankruptcy Rules.
11.13 NO ADMISSIONS.
Notwithstanding anything herein to the contrary, nothing
contained in the Plan shall be deemed as an admission by the Debtors with
respect to any matter set forth herein including, without limitation, liability
on any Claim or the propriety of any Claims classification.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
78
ARTICLE XII.
CONFIRMATION REQUEST
The Debtors request confirmation of the Plan under section
1129(b) of the Bankruptcy Code.
Dated: February 6, 2004
NEW DIMENSION HOMES, INC.
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
DREAM STREET COMPANY, LLC
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
OAKWOOD SHARED SERVICES, LLC
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
HBOS MANUFACTURING, LP
By: Oakwood Mobile Homes, Inc., General
Partner
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
79
OAKWOOD MHD4, LLC
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
OAKWOOD ACCEPTANCE
CORPORATION, LLC
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
OAKWOOD HOMES CORPORATION
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Executive Vice President
OAKWOOD MOBILE HOMES, INC.
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
SUBURBAN HOME SALES, INC.
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
80
FSI FINANCIAL SERVICES, INC.
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
HOME SERVICE CONTRACT, INC.
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
TRI-STATE INSURANCE AGENCY, INC.
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
GOLDEN WEST LEASING, LLC
By: /s/ Randelle R.. Smith
------------------------------------
Name: Randelle R. Smith
Title: Vice President
CREST CAPITAL, LLC
By: /s/ Randelle R. Smith
------------------------------------
Name: Randelle R. Smith
Title: Vice President
81
PREFERRED HOUSING SERVICES, LP
By: Oakwood Mobile Homes, Inc., General
Partner
By: /s/ Robert A. Smith
------------------------------------
Name: Robert A. Smith
Title: Vice President
- and -
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ Daniel B. Butz
----------------------------------------
Robert J. Dehney (No. 3578)
Derek C. Abbott (No. 3376)
Daniel B. Butz (No. 4227)
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
(302) 658-9200
- and -
RAYBURN COOPER & DURHAM, P.A.
C. Richard Rayburn, Jr.
Albert F. Durham
Patricia B. Edmondson
1200 Carillon, 227 West Trade Street
Charlotte, North Carolina 28202-1675
(704) 334-0891
82