Exhibit 2.1
Third Amended Joint Plan of Reorganization under Chapter 11, Title 11 United
States Code of Amcast Industrial Corporation and its Affiliated Debtor Entities
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
In Re: : Chapter 11
:
AMCAST INDUSTRIAL CORPORATION, et al. : Case No. 04-40504
: (Jointly Administered)
Debtors and Debtors in Possession :
: Judge Walter
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THIRD AMENDED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11, TITLE 11,
UNITED STATES CODE OF AMCAST INDUSTRIAL CORPORATION AND
ITS AFFILIATED DEBTOR ENTITIES
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Alan R. Lepene, Esq.
Jeremy M. Campana, Esq.
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114-1291
Telephone: 216.566.5500
Facsimile: 216.566.5800
alan.lepene@thompsonhine.com
jeremy.campana@thompsonhine.com
-and-
Lawrence T. Burick, Esq.
Jennifer L. Maffett, Esq.
THOMPSON HINE LLP
2000 Courthouse Plaza N.E.
10 West Second Street
Dayton, Ohio 45402
Telephone: 937.443.6600
Facsimile: 937.443.6635
jennifer.maffett@ thompsonhine.com
larry.burick@thompsonhine.com
Attorneys for Debtors and Debtors-in-Possession
TABLE OF CONTENTS
INTRODUCTION................................................................................ 1
ARTICLE I DEFINITIONS....................................................................... 1
1.1 Abandoned Properties............................................................. 2
1.2 Adequate Protection Claims....................................................... 2
1.3 Administrative Claim............................................................. 2
1.4 Administrative Trade Claims...................................................... 2
1.5 Allowed.......................................................................... 2
1.6 Amcast........................................................................... 2
1.7 Amcast DIP Facility Order........................................................ 3
1.8 Amcast Interests................................................................. 3
1.9 Amcast Interests in Affiliates................................................... 3
1.10 Amcast Key Employee Retention Plan............................................... 3
1.11 Articles of Incorporation........................................................ 3
1.12 Assigned Causes of Action........................................................ 3
1.13 Bankruptcy Code.................................................................. 3
1.14 Bankruptcy Court................................................................. 3
1.15 Bankruptcy Rules................................................................. 3
1.16 Bar Date(s)...................................................................... 3
1.17 Business Day..................................................................... 4
1.18 Cash............................................................................. 4
1.19 Cash Investment Yield............................................................ 4
1.20 Chapter 11 Case.................................................................. 4
1.21 Claim............................................................................ 4
1.22 Claims Objection Deadline........................................................ 4
1.23 Class............................................................................ 4
1.24 Code of Regulations.............................................................. 4
1.25 Confirmation..................................................................... 4
1.26 Confirmation Date................................................................ 4
1.27 Confirmation Hearing............................................................. 4
1.28 Confirmation Order............................................................... 4
1.29 Creditor......................................................................... 5
1.30 Creditors Committee.............................................................. 5
1.31 Creditor Trust................................................................... 5
1.32 Creditor Trust Agreement......................................................... 5
1.33 Creditor Trust Assets............................................................ 5
1.34 Creditor Trust Causes of Action.................................................. 5
1.35 Critical Vendors................................................................. 5
1.36 Critical Vendor Order............................................................ 5
1.37 Cure............................................................................. 5
1.38 Debtor(s)........................................................................ 6
1.39 DIP Facility..................................................................... 6
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1.40 DIP Facility Agent............................................................... 6
1.41 DIP Facility Claim............................................................... 6
1.42 DIP Facility Lenders............................................................. 6
1.43 Disbursing Agent................................................................. 6
1.44 Disclosure Statement............................................................. 6
1.45 Disputed......................................................................... 6
1.46 Distribution Date................................................................ 7
1.47 Distribution Record Date......................................................... 7
1.48 Effective Date................................................................... 7
1.49 ERISA............................................................................ 7
1.50 Estate(s)........................................................................ 7
1.51 Exit Facility.................................................................... 7
1.52 Face Amount...................................................................... 8
1.53 Fayetteville, Arkansas Property.................................................. 8
1.54 Final Order...................................................................... 8
1.55 General Unsecured Claim.......................................................... 8
1.56 Impaired......................................................................... 8
1.57 Indemnification Obligation....................................................... 8
1.58 Indemnification Rights........................................................... 8
1.59 Indemnitees...................................................................... 8
1.60 Insurance Coverage............................................................... 8
1.61 Intercompany Claim............................................................... 8
1.62 Interests........................................................................ 8
1.63 Key Continuing Vendor Claim...................................................... 8
1.64 Lien............................................................................. 8
1.65 Line of Credit Documents......................................................... 9
1.66 Liquidating Trustee.............................................................. 9
1.67 Litigation Rights................................................................ 9
1.68 Mechanics Lien Secured Claim..................................................... 9
1.69 Net Stowe Proceeds............................................................... 9
1.70 New Amcast Common Stock.......................................................... 9
1.71 New Senior Notes................................................................. 9
1.72 New Shareholders' Agreement...................................................... 9
1.73 Non Compensatory Damages Claim................................................... 9
1.74 Northwestern Note Agreement...................................................... 9
1.75 Note Holders..................................................................... 9
1.76 Old Amcast Common Stock.......................................................... 10
1.77 Intentionally Omitted............................................................ 10
1.78 Old Securities................................................................... 10
1.79 Operating Agreement.............................................................. 10
1.80 Other Priority Claim............................................................. 10
1.81 Other Secured Claim.............................................................. 10
1.82 PBGC............................................................................. 10
1.83 Person........................................................................... 10
1.84 Petition Date.................................................................... 10
1.85 Plan............................................................................. 10
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1.86 Plan Supplement.................................................................. 10
1.87 Prepetition Secured Credit Agreement............................................. 10
1.88 Prepetition Secured Lender Agent................................................. 10
1.89 Prepetition Secured Lenders...................................................... 11
1.90 Prepetition Secured Lender Claim................................................. 11
1.91 Principal Note Agreement......................................................... 11
1.92 Priority Tax Claim............................................................... 11
1.93 Professional..................................................................... 11
1.94 Professional Fee Claim........................................................... 11
1.95 Proof of Claim................................................................... 11
1.96 Pro Rata......................................................................... 11
1.97 Intentionally Omitted............................................................ 11
1.98 Reinstated....................................................................... 11
1.99 Reorganized Debtor(s)............................................................ 12
1.100 Reorganized Amcast............................................................... 12
1.101 Restructuring Transactions....................................................... 12
1.102 Schedules........................................................................ 12
1.103 Secured Claim.................................................................... 12
1.104 Stowe, Pennsylvania Property..................................................... 12
1.105 Term Note A...................................................................... 12
1.106 Term Note A Agreement............................................................ 12
1.107 Term Note B...................................................................... 12
1.108 Term Note B Agreement............................................................ 12
1.109 Trade Agreement.................................................................. 13
1.110 Unimpaired....................................................................... 13
1.111 Unsecured Deficiency Claim....................................................... 13
1.112 Voting Deadline.................................................................. 13
ARTICLE II JOINT TREATMENT UNDER THE PLAN................................................... 13
2.1 Joint Treatment.................................................................. 13
ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS.......................................... 13
3.1 Introduction..................................................................... 14
3.2 Unimpaired Claims................................................................ 14
3.3 Impaired Claims.................................................................. 14
3.4 Impaired Interests............................................................... 15
3.5 Unimpaired Interests............................................................. 15
ARTICLE IV TREATMENT OF CLAIMS AND INTERESTS................................................ 15
4.1 Unclassified Claims.............................................................. 15
4.2 Unimpaired Classes of Claims and Interests....................................... 16
4.3 Impaired Classes of Claims....................................................... 17
4.4 Impaired Classes of Interests.................................................... 19
4.5 Reservation of Rights Regarding Claims........................................... 19
ARTICLE V ACCEPTANCE OR REJECTION OF THE PLAN............................................... 19
5.1 Impaired Classes of Claims and Interests Entitled to Vote........................ 19
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5.2 Acceptance by an Impaired Class.................................................. 19
5.3 Presumed Acceptances by Unimpaired Classes....................................... 19
5.4 Classes Deemed to Reject Plan.................................................... 19
5.5 Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code.................. 20
ARTICLE VI MEANS FOR IMPLEMENTATION OF THE PLAN............................................. 20
6.1 Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtors....................................................................... 20
6.2 Articles of Incorporation, Code of Regulations, and/or Operating Agreement....... 20
6.3 Restructuring Transactions....................................................... 20
6.4 Funding.......................................................................... 22
6.5 Cancellation of the Prepetition Transaction Documents and Issuance of New
Senior Notes.................................................................. 22
6.6 Cancellation of Old Securities and Agreements.................................... 22
6.7 Authorization and Issuance of New Securities..................................... 22
6.8 Directors of Reorganized Debtors................................................. 23
6.9 Officers of Reorganized Debtors.................................................. 23
6.10 Revesting of Assets; Releases of Liens; Effective Date Restructurings............ 23
6.11 Indemnification of Debtors' Directors, Officers, and Employees................... 23
6.12 Preservation of Rights of Action and Waiver of Certain Avoidance Actions......... 23
6.13 Effectuating Documents; Further Transactions..................................... 24
6.14 Exemption From Certain Transfer Taxes............................................ 24
6.15 Corporate Action................................................................. 25
6.16 Sale of Stowe, Pennsylvania Property............................................. 25
6.17 The Creditor Trust............................................................... 25
6.18 Preservation of Creditor Trust Causes of Action.................................. 28
ARTICLE VII TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES........................... 28
7.1 Deemed Rejection of Executory Contracts and Leases............................... 28
7.2 Cure Payments Related to Assumption of Executory Contracts and Leases............ 29
7.3 Right to Assume Contracts and Leases............................................. 29
7.4 Rejection Damages Bar Date....................................................... 29
7.5 Compensation and Benefit Programs................................................ 30
7.6 Indemnification Obligations...................................................... 31
7.7 Extension of Time to Assume or Reject............................................ 32
7.8 Claims Arising From Assumption or Rejection...................................... 32
ARTICLE VIII PROVISIONS GOVERNING DISTRIBUTIONS............................................. 32
8.1 Distributions for Claims Allowed as of Effective Date............................ 32
8.2 Distributions in Respect of Class 5 General Unsecured Claims; Creditor Trust..... 32
8.3 Interest on Claims............................................................... 33
8.4 Designation; Distributions by Disbursing Agent in Respect of Claims in
Classes Other Than Class 5.................................................... 33
8.5 Means of Cash Payment............................................................ 33
8.6 Intentionally Omitted............................................................ 33
8.7 Calculation of Distribution Amounts of New Amcast Common Stock................... 34
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8.8 Delivery of Distributions to Holders of Claims in Classes Other Than Class 5..... 34
8.9 Application of Distribution Record Date for Holders of Prepetition Secured
Lender Secured Claims......................................................... 34
8.10 Withholding and Reporting Requirements........................................... 35
8.11 Setoffs.......................................................................... 35
8.12 Prepayment....................................................................... 35
ARTICLE IX PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT, AND UNLIQUIDATED CLAIMS AND
DISTRIBUTIONS WITH RESPECT THERETO.......................................................... 36
9.1 Prosecution of Objections to Claims.............................................. 36
9.2 Treatment of Disputed Claims..................................................... 37
9.3 Distributions on Account of Disputed Claims Once They are Allowed................ 37
ARTICLE X CONDITIONS PRECEDENT TO AND CONSUMMATION OF THE PLAN.............................. 37
10.1 Conditions to Effective Date..................................................... 37
ARTICLE XI RETENTION OF JURISDICTION........................................................ 38
11.1 Scope of Retention of Jurisdiction............................................... 38
11.2 Failure of the Bankruptcy Court to Exercise Jurisdiction......................... 40
11.3 Preservation of Jurisdiction in Certain Non-Bankruptcy Forums.................... 40
ARTICLE XII MISCELLANEOUS PROVISIONS........................................................ 40
12.1 Professional Fee Claims; Expense Reimbursements.................................. 40
12.2 Administrative Claims............................................................ 41
12.3 Payment of Statutory Fees........................................................ 41
12.4 Modifications and Amendments..................................................... 41
12.5 Severability of Plan Provisions.................................................. 41
12.6 Successors and Assigns and Binding Effect........................................ 42
12.7 Compromises and Settlements...................................................... 42
12.8 Releases and Satisfaction of Subordination Rights................................ 42
12.9 Releases and Related Matters..................................................... 42
12.10 Discharge of the Debtors......................................................... 44
12.11 Injunction....................................................................... 45
12.12 Exculpation and Limitation of Liability.......................................... 46
12.13 Term of Injunctions or Stays..................................................... 46
12.14 Post-Confirmation Conversion/Dismissal........................................... 47
12.15 Revocation, Withdrawal, or Non Consummation...................................... 47
12.16 Plan Supplement.................................................................. 47
12.17 Notices.......................................................................... 47
12.18 Dissolution of Creditors Committee............................................... 49
12.19 Computation of Time.............................................................. 49
12.20 Governing Law.................................................................... 49
12.21 PBGC Claims...................................................................... 49
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EXHIBITS
Exhibit A Summary of Terms of Amcast's Exit Facility
Exhibit B New Shareholders' Agreement and Summary of Terms of New Senior
Notes and New Amcast Common Stock
Exhibit C Directors, Officers, and Employees Covered by the Release
Provisions in the Plan
Exhibit D Legal Description of Fayetteville, Arkansas Real Property
Exhibit E Legal Description of Stowe, Pennsylvania Real Property
Exhibit F Litigation Rights Retained by the Reorganized Debtors
Exhibit G Creditor Trust Causes of Action
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THIRD AMENDED JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11,
TITLE 11, UNITED STATES CODE OF AMCAST INDUSTRIAL CORPORATION AND
ITS AFFILIATED DEBTOR ENTITIES
INTRODUCTION
Amcast Industrial Corporation ("Amcast"), together with its affiliated
debtor entities, as debtors and debtors-in-possession (collectively with Amcast,
the "Debtors")1 hereby propose this third amended joint plan of reorganization
(the "Plan") for the resolution of their outstanding Claims (as defined herein)
and Interests (as defined herein). Reference is made to the Disclosure Statement
(as defined herein) distributed herewith for a discussion of the history,
businesses, properties, results of operations, projections for future
operations, risk factors of the Debtors, a summary and analysis of the Plan, and
certain related matters, including the New Amcast Common Stock (as defined
herein) to be issued under the Plan. The Debtors are the proponents of the Plan
within the meaning of Section 1129 of the Bankruptcy Code (as defined herein).
All holders of Claims who are entitled to vote on the Plan are encouraged
to read the Plan and the Disclosure Statement in their entirety before voting to
accept or reject the Plan. Subject to certain restrictions and requirements set
forth in Section 1127 of the Bankruptcy Code, Rule 3019 of the Bankruptcy Rules
(as defined herein), and Article XII of the Plan, the Debtors reserve the right
to alter, amend, modify, revoke, or withdraw the Plan prior to its substantial
consummation.
For purposes of the Plan, except as expressly provided or unless the
context otherwise requires, all capitalized terms not otherwise defined in the
Plan shall have the respective meanings given to them in Article I of the Plan.
Any capitalized term used in the Plan that is not defined herein, but is defined
in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning given to
that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be.
Whenever the context requires, defined terms shall include the plural as well as
the singular number, the masculine gender shall include the feminine, and the
feminine gender shall include the masculine.
ARTICLE I
DEFINITIONS
For purposes of the Plan, (a) any reference in the Plan to a contract,
instrument, release, 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, (b)
any reference in the Plan to an existing document or exhibit means such document
or exhibit as it may be amended, modified, or supplemented from time to time,
(c) unless otherwise specified, all references in the Plan to sections,
articles, schedules, and exhibits
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(1) The Debtors are: Amcast Industrial Corporation, Amcast Automotive of
Indiana, Inc., Speedline North America, Inc., Amcast Casting Technologies, Inc.,
Izumi, Inc., Casting Technology Company, Amcast Automotive, Inc., Amcast
Plumbing, Inc. f/k/a Elkhart Products Corporation, LBC Group Corp., Lee Brass
Company, Amcast Industrial Financial Services, Inc., Amcast Investment Services
Corporation, Amcast Aviation Corporation, Amcast Precision Products, Inc., Flagg
Brass Industrial, L.L.C. and AS International, Inc.
are references to sections, articles, schedules, and exhibits of or to the Plan,
(d) the words "herein," "hereof," and "hereto" refer to the Plan in its entirety
rather than to a particular portion of the Plan, (e) captions and headings to
articles and sections are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation of the Plan, and (f)
the rules of construction set forth in Section 102 of the Bankruptcy Code and in
the Bankruptcy Rules shall apply.
1.1 "Abandoned Properties" means any properties of the Debtors that have
been abandoned by Final Order of the Bankruptcy Court, under Section 554 of the
Bankruptcy Code.
1.2 "Adequate Protection Claims" means rights to adequate protection
arising under the DIP Facility, as such term is defined in Section 1.39 of the
Plan, and as set forth in the Amcast DIP Facility Order.
1.3 "Administrative Claim" means a Claim for payment of an administrative
expense of a kind specified in Section 503(b) or 1114(e)(2) of the Bankruptcy
Code and entitled to priority pursuant to Section 507(a)(1) of the Bankruptcy
Code, including, but not limited to, (a) the actual, necessary costs and
expenses incurred after the Petition Date of preserving the Estates and
operating the businesses of the Debtors, including wages, salaries, bonuses, or
commissions for services rendered on or after the Petition Date, (b)
Professional Fee Claims, (c) all fees and charges assessed against the Estates
under Section 1930 of Title 28 of the United States Code, (d) all Allowed Claims
for reclamation under Section 546(c)(2)(A) of the Bankruptcy Code, (e) Cure
payments for executory contracts and unexpired leases that are assumed under
Section 365 of the Bankruptcy Code, and (f) claims under the DIP Facility.
1.4 "Administrative Trade Claims" has the meaning given to such term in
Section 4.1(a) of the Plan.
1.5 "Allowed" means, (a) when used with respect to an Administrative
Claim, all or any portion of an Administrative Claim that has been allowed, or
adjudicated in favor of the holder by estimation or liquidation, by a Final
Order, that was incurred by the Debtors during the Chapter 11 Case and as to
which there is no dispute as to the Debtors' liability, or that has become
allowed by failure to object pursuant to Section 9.1 of the Plan; and (b) when
used with respect to a Claim other than an Administrative Claim, such Claim or
any portion thereof (i) that has been allowed, or adjudicated in favor of the
holder by estimation or liquidation, by a Final Order, or (ii) as to which (x)
no Proof of Claim has been filed with the Bankruptcy Court, (y) the liquidated
and noncontingent amount of which is included in the Schedules, other than a
Claim that is included in the Schedules at zero, in an unknown amount, or as
Disputed, and (z) no objection has been filed by the Claims Objection Deadline,
or (iii) for which a Proof of Claim in a liquidated amount has been timely filed
with the Bankruptcy Court pursuant to the Bankruptcy Code, any Final Order of
the Bankruptcy Court, or other applicable bankruptcy law, and as to which either
(x) no objection to its allowance has been filed by the Claims Objection
Deadline and no objection or dispute as to such Claim is set forth in the Plan,
or (y) any objection to its allowance has been settled or withdrawn, or has been
denied by a Final Order, or (iv) that is expressly allowed in a liquidated
amount in the Plan.
1.6 "Amcast" means Amcast Industrial Corporation, an Ohio corporation.
1.7 "Amcast DIP Facility Order" means collectively the interim and Final
Order of the Bankruptcy Court: (a) authorizing postpetition secured financing on
a superpriority basis; (b) authorizing the Debtors' use of cash collateral; (c)
granting adequate protection; (d) modifying automatic stay; (d) granting related
relief; and (e) in the case of the interim order, scheduling a final hearing,
which was entered by the Bankruptcy Court, as it may be amended through the
Effective Date; provided, however, that in the event the final Amcast DIP
Facility Order is inconsistent with or conflicts with the interim Amcast DIP
Facility Order, the term Amcast DIP Facility Order shall mean only the Final
Order to the extent of such inconsistency or conflict.
1.8 "Amcast Interests" means, collectively, all equity interests in Amcast
and its Debtor affiliates, including, without limitation, the Old Amcast Common
Stock, and any warrants, option rights, conversion rights, rights of first
refusal, causes of action, or other rights, contractual or otherwise, to acquire
or receive any stock or other equity ownership interests in Amcast or any of its
Debtor affiliates, and any contracts, subscriptions, commitments, or agreements
pursuant to which a party was or could have been entitled to receive shares,
securities, or other ownership interests in Amcast or any of its Debtor
affiliates as of the Petition Date; provided, however, the term shall not
include any equity interests of Amcast in any of its affiliates or the equity
interests of any Debtor affiliates in any other affiliates.
1.9 "Amcast Interests in Affiliates" means, collectively, all equity
interests of Amcast in any of its Debtor and non-Debtor affiliates and all
equity interest of any Debtor affiliates in any other Debtor and non-Debtor
affiliates.
1.10 "Amcast Key Employee Retention Plan" means the key employee retention
plan(s) to be adopted by Reorganized Amcast and certain of its Debtor affiliates
pursuant to Section 7.5(b) of the Plan, substantially in the form of such
document(s) to be included in the Plan Supplement.
1.11 "Articles of Incorporation" means, as applicable, the documents filed
with the secretary of the state of each Debtors' respective state of
incorporation.
1.12 "Assigned Causes of Action" has the meaning given to such term in
Section 4.3(d) of the Plan.
1.13 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
codified in title 11 of the United States Code, 11 U.S.C. Sections 101 1330, as
now in effect or hereafter amended.
1.14 "Bankruptcy Court" means the United States Bankruptcy Court for the
Southern District of Ohio, Western Division at Dayton, or such other court as
may have jurisdiction over the Chapter 11 Case.
1.15 "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure.
1.16 "Bar Date(s)" means the date(s) designated by the Bankruptcy Court as
the last date(s) for filing Proofs of Claim against the Debtors.
1.17 "Business Day" means any day, excluding Saturdays, Sundays, or "legal
holidays" (as defined in Rule 9006(a) of the Bankruptcy Rules), on which
commercial banks are open for business in New York, New York.
1.18 "Cash" means legal tender of the United States or equivalents
thereof.
1.19 "Cash Investment Yield" means the amount realized from the investment
of funds pursuant to the investment and deposit guidelines specified in the
Creditor Trust Agreement.
1.20 "Chapter 11 Case" means the jointly administered Chapter 11 cases of
the Debtors filed with the Bankruptcy Court and assigned Case No. 04 40504.
1.21 "Claim" means (a) the right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, or (b)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured. For avoidance of doubt, Claim does not mean
any right to payment of any nature arising out of or related to Interests, as
defined in Section 1.62.
1.22 "Claims Objection Deadline" means the last day for filing objections
to Claims, which day shall be (a) for all Claims other than General Unsecured
Claims and Key Continuing Vendor Claims, the latest of (i) sixty (60) days after
the Effective Date, (ii) sixty (60) days after the applicable Proof of Claim or
request for payment of an Administrative Claim is filed, or (iii) such other
date ordered by the Bankruptcy Court upon motion of the Debtors or any other
party; or (b) for General Unsecured Claims and Key Continuing Vendor Claims, the
latest of (i) ninety (90) days after the Effective Date, (ii) sixty (60) days
after the applicable Proof of Claim is filed, or (iii) such other date ordered
by the Bankruptcy Court upon motion of the Debtors or any other party.
1.23 "Class" means a category of holders of Claims or Interests, as
described in Article III of the Plan.
1.24 "Code of Regulations" means, as applicable, certain written internal
regulations or by-laws of the Debtors or Reorganized Debtors, as amended from
time to time, governing the respective entities' operations.
1.25 "Confirmation" means approval of the Plan by the Bankruptcy Court
pursuant to Section 1129 of the Bankruptcy Code.
1.26 "Confirmation Date" means the date of entry by the clerk of the
Bankruptcy Court of the Confirmation Order.
1.27 "Confirmation Hearing" means the hearing to consider Confirmation of
the Plan under Section 1128 of the Bankruptcy Code.
1.28 "Confirmation Order" means the order entered by the Bankruptcy Court
confirming the Plan.
1.29 "Creditor" means any Person who holds a Claim against any of the
Debtors.
1.30 "Creditors Committee" means the Official Committee of Unsecured
Creditors appointed pursuant to Section 1102(a) of the Bankruptcy Code in the
Chapter 11 Case, as reconstituted from time to time.
1.31 "Creditor Trust" means the liquidating trust established pursuant to
Section 6.17 of the Plan for the purpose of receiving, liquidating and
distributing the Creditor Trust Assets assigned to the holders of General
Unsecured Claims under the Plan.
1.32 "Creditor Trust Agreement" means the agreement establishing the
Creditor Trust and specifying the rights and obligations of the Liquidating
Trustee and the holders of Allowed General Unsecured Claims as the beneficiaries
thereunder.
1.33 "Creditor Trust Assets" means (a) $1.75 million in cash or
immediately available cash equivalents; (b) the right to receive fifty percent
(50%) of the Net Stowe Proceeds realized from any sale of the Stowe,
Pennsylvania Property as may be consummated by the Debtors pursuant to the
provisions of Section 6.16 of the Plan; (c) fee simple title and all of the
Debtors' right, title, and interest in or to the Fayetteville, Arkansas
Property; and (d) the Creditor Trust Causes of Action.
1.34 "Creditor Trust Causes of Action" means any and all claims and causes
of action held by the Debtors or the Estates (or claims of generalized harm to
creditors, as opposed to direct claims of individual creditors) related to any
and all pre-petition rabbi trusts, pension plans (qualified and unqualified),
supplemental executive retirement plans, or similar claims with respect to the
Debtors' pension or retirement plans. Notwithstanding any of the foregoing, no
claims of the Pension Benefit Guaranty Corporation in its own capacity and/or in
its capacity as statutory trustee of the Amcast Industrial Corporation Merged
Pension Plan (the "Pension Plan") with respect to the Pension Plan shall be
assigned to the Creditor Trust or vest in the Reorganization Debtors, nor shall
any such claims be time-barred except as provided under ERISA.
1.35 "Critical Vendors" means those Persons that the Debtors designated as
critical vendors, pursuant to the Critical Vendor Order, who executed Trade
Agreements with one or more of the Debtors and who are holders of Key Continuing
Vendor Claims.
1.36 "Critical Vendor Order" means the order entered by the Bankruptcy
Court on December 28, 2004, as supplemented by a stipulation and supplemental
agreed order entered by the Bankruptcy Court on March 25, 2005, which approved
payments to the Critical Vendors.
1.37 "Cure" means with respect to the assumption of an executory contract
or unexpired lease pursuant to Section 365(b) of the Bankruptcy Code, (a) the
distribution of Cash, or the distribution of such other property as may be
agreed upon by the parties or ordered by the Bankruptcy Court, in an amount
equal to all unpaid monetary obligations, without interest, or such other amount
as may be agreed upon by the parties under an executory contract or unexpired
lease, to the extent such obligations are enforceable under the Bankruptcy Code
and applicable bankruptcy law, or (b) the taking of such other actions as may be
agreed upon by the parties or ordered by the Bankruptcy Court.
1.38 "Debtor(s)" means, Amcast, Amcast Automotive of Indiana, Inc.,
Speedline North America, Inc., Amcast Casting Technologies, Inc., Izumi, Inc.,
Casting Technology Company, Amcast Automotive, Inc., Amcast Plumbing, Inc. f/k/a
Elkhart Products Corporation, LBC Group Corp., Lee Brass Company, Amcast
Industrial Financial Services, Inc., Amcast Investment Services Corporation,
Amcast Aviation Corporation, Amcast Precision Products, Inc., Flagg Brass
Industrial, L.L.C., and AS International, Inc., including in their capacities as
debtors in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
1.39 "DIP Facility" means that certain Amcast Debtor in Possession Credit
Agreement dated December 15, 2004, as such facility may be amended, supplemented
or otherwise modified, among Amcast, as debtor in possession and as borrower and
its affiliated Debtor entities as guarantors, and Heritage Bank, SSB, a
Texas-chartered savings bank in its capacity as Administrative Agent (the "DIP
Facility Agent"), certain investment funds managed by Highland Capital
Management, L.P. ("Highland"), and other Persons as "Lenders" (such other
"Lenders," together with Highland are hereinafter collectively referred to as
the "DIP Facility Lenders").
1.40 "DIP Facility Agent" has the meaning given to such term in the
definition of "DIP Facility" in Section 1.39 of the Plan.
1.41 "DIP Facility Claim" means a Claim arising under or as a result of
the DIP Facility.
1.42 "DIP Facility Lenders" has the meaning given to such term in the
definition of "DIP Facility" in Section 1.39 of the Plan.
1.43 "Disbursing Agent" means Reorganized Amcast or any Person designated
by Reorganized Amcast, in its sole discretion, to serve as disbursing agent
under the Plan for assets to be distributed to holders of Allowed Claims other
than Class 5 Claims.
1.44 "Disclosure Statement" means the written disclosure statement that
relates to the Plan, as amended, supplemented, or modified from time to time,
and that is prepared, approved and distributed in accordance with Section 1125
of the Bankruptcy Code and Rule 3018 of the Bankruptcy Rules or any summary
thereof approved by the Bankruptcy Court for distribution to certain Classes of
Claims and Interests.
1.45 "Disputed" means, with respect to any Claim, other than a Claim that
has been Allowed pursuant to the Plan or a Final Order of the Bankruptcy Court,
a Claim:
(a) if no Proof of Claim has been filed or deemed to have been filed
by the applicable Bar Date, that has been or hereafter is listed on the
Schedules as unliquidated, contingent, or disputed;
(b) if a Proof of Claim has been filed or deemed to have been filed
by the applicable Bar Date, as to which a Debtor or any other party with
standing has timely filed an objection or request for estimation in
accordance with the Plan, the Bankruptcy Code, the Bankruptcy Rules, or
any orders of the Bankruptcy Court, or which is otherwise disputed by a
Debtor or any other party with standing in accordance with
applicable law, which objection, request for estimation, or dispute has
not been withdrawn or determined by a Final Order;
(c) for which a Proof of Claim was required to be filed by the
Bankruptcy Code, the Bankruptcy Rules, or an order of the Bankruptcy
Court, but as to which a Proof of Claim was not timely or properly filed;
(d) that is disputed in accordance with the provisions of the Plan;
(e) that is the subject of a timely filed objection or request for
estimation filed by a Debtor or any other party with standing which
objection or request for estimation has not been withdrawn or determined
by a Final Order; or
(f) if not otherwise Allowed, as to which the applicable Claims
Objection Deadline has not expired.
1.46 "Distribution Date" means (a) for any Claim other than a General
Unsecured Claim or Key Continuing Vendor Claim (i) that is an Allowed Claim on
the Effective Date, on or as soon as practicable after the Effective Date, but
in any case no later than the first Business Day that is thirty (30) days after
the Effective Date, or (ii) that is not an Allowed Claim on the Effective Date,
fifteen (15) calendar days after the last day of the month during which the
Claim becomes an Allowed Claim; (b) for any General Unsecured Claim, such dates
as are provided in the Creditor Trust Agreement; and (c) for any Key Continuing
Vendor Claim, such dates as are consistent with the terms or the course of
dealing under the Trade Agreement between the Debtors and the Critical Vendor.
1.47 "Distribution Record Date" means the record date for determining
entitlement to receive initial distributions under the Plan on account of
Allowed Claims other than Class 5 Claims, which date shall be the third (3rd)
Business Day after the Confirmation Date at 5:00 p.m. prevailing Eastern time.
1.48 "Effective Date" means the Business Day upon which all conditions to
the consummation of the Plan as set forth in Section 10.1 of the Plan have been
satisfied, and is the date on which the Plan becomes effective.
1.49 "ERISA" has the meaning given to such term in Section 7.5(a) of the
Plan.
1.50 "Estate(s)" means, individually, the estate of each Debtor in the
Chapter 11 Case and, collectively, the estates of all Debtors in the Chapter 11
Case, created pursuant to Section 541 of the Bankruptcy Code.
1.51 "Exit Facility" means (i) that certain revolving credit facility to
be obtained by Amcast, containing the principal terms and conditions set forth
on Exhibit A to the Plan, and (ii) Term Note A and Term Note B, the principal
terms and conditions of which are set forth on Exhibit A to the Plan.
1.52 "Face Amount" means the actual claimed amount set forth on a Proof of
Claim or, if no Proof of Claim has been filed, the amount listed on the Debtors'
Schedules as being undisputed, liquidated and noncontingent.
1.53 "Fayetteville, Arkansas Property" means certain real property located
in Fayetteville, Arkansas, the legal description of which is attached to the
Plan as Exhibit D.
1.54 "Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction, as entered on the docket in the Chapter
11 Case or the docket of any such court, the operation or effect of which has
not been stayed, reversed, or amended and as to which order or judgment (or any
revision, modification, or amendment thereof) the time to appeal or seek review
or rehearing or leave to appeal has expired and as to which no appeal or
petition for review or rehearing was filed or, if filed, no longer remains
pending.
1.55 "General Unsecured Claim" means a Claim against any of the Debtors
that is not a Secured Claim, an Administrative Claim, a Priority Tax Claim,
Other Priority Claim, Key Continuing Vendor Claim, Intercompany Claim, or Non
Compensatory Damages Claim.
1.56 "Impaired" means, with respect to any Claim or Interest, that such
Claim or Interest is impaired within the meaning of Section 1124 of the
Bankruptcy Code.
1.57 "Indemnification Obligation" means any obligation of the Debtors to
indemnify, reimburse, or provide contribution to a Person arising pursuant to
the Debtors' Codes of Regulation, Operating Agreements, by laws, Articles of
Incorporation, contracts, or otherwise.
1.58 "Indemnification Rights" has the meaning given to such term in
Section 7.6(b) of the Plan.
1.59 "Indemnitees" has the meaning given to such term in Section 7.6(b) of
the Plan.
1.60 "Insurance Coverage" has the meaning given to such term in Section
7.6(b) of the Plan.
1.61 "Intercompany Claim" means any Claim, arising prior to the Petition
Date against any of the Debtors by one of the other Debtors or by a non Debtor
subsidiary or affiliate of a Debtor, but only to the extent that such affiliate
is a direct or indirect subsidiary of one of the Debtors.
1.62 "Interests" means legal, equitable, contractual, or other rights of
any Person with respect to the Amcast Interests.
1.63 "Key Continuing Vendor Claim" means an unsecured Claim held by a
Critical Vendor.
1.64 "Lien" means a charge against or interest in property to secure
payment of a debt or performance of an obligation.
1.65 "Line of Credit Documents" means the documents governing the line of
credit obligations of the Debtors as described in the Prepetition Secured Credit
Agreement.
1.66 "Liquidating Trustee" means the trustee named in the Creditor Trust
Agreement, and any duly appointed successor thereunder.
1.67 "Litigation Rights" means the claims, rights f action, suits, or
proceedings whether in law or in equity, whether known or unknown, other than
the Assigned Causes of Action specified in Section 4.3(d) of the Plan, that the
Debtors or their Estates may hold against any Person, which are to be retained
by one of the Reorganized Debtors pursuant to Section 6.12 of the Plan.
1.68 "Mechanics Lien Secured Claim" means the claim of a creditor who has
duly filed and perfected a mechanics or similar lien under state law that is not
subject to avoidance in accordance with the provisions of Section 546(b) of the
Bankruptcy Code.
1.69 "Net Stowe Proceeds" has the meaning given to such term in Section
6.16 the Plan.
1.70 "New Amcast Common Stock" means the common shares of Reorganized
Amcast to be issued under Section 6.7 of the Plan as of the Effective Date, as
described in the New Shareholders' Agreement attached hereto as Exhibit B to the
Plan.
1.71 "New Senior Notes" means Term Note A and Term Note B, as defined,
respectively, in Sections 1.105 and 1.107 of the Plan, such notes being issued
by Reorganized Amcast on the Effective Date.
1.72 "New Shareholders' Agreement" means that certain shareholder
agreement which governs the rights and obligations relating to the new equity
interests of the Reorganized Debtors, as attached hereto as Exhibit B to the
Plan.
1.73 "Non Compensatory Damages Claim" means any Claim against any of the
Debtors, for any fine, penalty, or forfeiture, or multiple, exemplary, or
punitive damages, to the extent that such fine, penalty, forfeiture, or damage
is not compensation for actual pecuniary loss suffered by the holder of such
Claim, including any such claim based upon, arising from, or relating to any
cause of action whatsoever (including, without limitation, violation of law,
personal injury, or wrongful death, whether secured or unsecured, liquidated or
unliquidated, fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, then existing or thereafter arising in law, equity or
otherwise).
1.74 "Northwestern Note Agreement" means the Note Agreement, dated as of
November 1, 1995, pursuant to which Amcast issued to Northwestern Mutual Life
Insurance Company certain $25 million 10.09% senior notes due November 7, 2003,
and any related documents, as the same has been, and may from time to time
hereinafter be further amended, restated or otherwise modified.
1.75 "Note Holders" shall mean the Note Holders party to either the
Northwestern Note Agreement or the Principal Note Agreement.
1.76 "Old Amcast Common Stock" means, collectively, the shares of voting
common stock, without par value, of Amcast authorized, issued and outstanding as
of the Petition Date.
1.77 Intentionally Omitted.
1.78 "Old Securities" means, collectively, the existing equity interests,
including Stocks and Warrants, of Amcast.
1.79 "Operating Agreement" means, as applicable, certain written documents
of the Debtors governing their internal operations.
1.80 "Other Priority Claim" means a Claim against the Debtors entitled to
priority pursuant to Section 507(a) of the Bankruptcy Code, other than a
Priority Tax Claim or an Administrative Claim.
1.81 "Other Secured Claim" means a Secured Claim arising prior to the
Petition Date against any of the Debtors, other than a Prepetition Secured
Lender Claim.
1.82 "PBGC" means the Pension Benefit Guaranty Corporation.
1.83 "Person" means any individual, firm, partnership, corporation, trust,
association, company, limited liability company, joint stock company, joint
venture, governmental unit, or other entity or enterprise.
1.84 "Petition Date" means November 30, 2004, the date on which the
Debtors filed their voluntary petitions for relief commencing the Chapter 11
Cases.
1.85 "Plan" means this joint plan of reorganization under Chapter 11 of
the Bankruptcy Code and all exhibits annexed hereto or referenced herein, as the
same may be amended, modified, or supplemented from time to time.
1.86 "Plan Supplement" means the supplement to the Plan containing the
forms of the Articles of Incorporation of Reorganized Amcast, the Code of
Regulations of Reorganized Amcast, the New Shareholders Agreement and Summary of
Terms of New Senior Notes and New Amcast Common Stock, the Creditor Trust
Agreement, the initial Board of Directors of Reorganized Amcast and a schedule
of the executory contracts to be assumed by the Debtors.
1.87 "Prepetition Secured Credit Agreement" means that certain Amended and
Restated Credit Agreement dated August 14, 1997 among Amcast, the Prepetition
Secured Lender Agent, as administrative agent, and the Lenders party thereto and
any documents, agreements, and instruments related thereto.
1.88 "Prepetition Secured Lender Agent" means Heritage Bank, SSB, as
successor administrative agent under the Prepetition Secured Credit Agreement
and in its capacity as collateral agent under the Collateral Agency and
Intercreditor Agreement dated as of June 5, 2001, as the same has been, and may
from time to time hereafter be further amended, restated or otherwise modified.
1.89 "Prepetition Secured Lenders" means the several lenders from time to
time party to the Prepetition Secured Credit Agreement, the Line of Credit
Documents, the Northwestern Note Agreement and the Principal Note Agreement, as
defined, respectively, in Sections 1.87, 1.65, 1.74 and 1.91 of the Plan.
1.90 "Prepetition Secured Lender Claim" means any Secured Claim arising
under the Prepetition Secured Credit Agreement, the Line of Credit Documents,
the Northwestern Note Agreement and the Principal Note Agreement as of the
Petition Date.
1.91 "Principal Note Agreement" means the Note Agreement, dated as of
November 1, 1995, pursuant to which Amcast issued to Principal Life Insurance
Company certain $25 million 10.09% senior notes due November 7, 2003, and any
related documents, as the same has been, and may from time to time hereinafter
be further amended, restated or otherwise modified.
1.92 "Priority Tax Claim" means a Claim that is entitled to priority
pursuant to Section 507(a)(8) of the Bankruptcy Code.
1.93 "Professional" means any professional employed in the Chapter 11 Case
pursuant to Sections 327 or 1103 of the Bankruptcy Code, and any professional
seeking compensation or reimbursement of expenses in connection with the Chapter
11 Case pursuant to Section 503(b) of the Bankruptcy Code.
1.94 "Professional Fee Claim" means a Claim of a Professional for
compensation or reimbursement of costs and expenses relating to services
rendered after the Petition Date and prior to and including the Effective Date.
1.95 "Proof of Claim" means a proof of claim filed with the Bankruptcy
Court in connection with the Chapter 11 Case.
1.96 "Pro Rata" means, at any time, the proportion that the amount of a
Claim in a particular Class or Classes (or portions thereof, as applicable)
bears to the aggregate amount of all Claims (including Disputed Claims) in such
Class or Classes, unless the Plan provides otherwise.
1.97 Intentionally Omitted.
1.98 "Reinstated" means (a) leaving unaltered the legal, equitable, and
contractual rights to which the holder of a Claim is entitled so as to leave
such Claim unimpaired in accordance with Section 1124 of the Bankruptcy Code, or
(b) notwithstanding any contractual provision or applicable law that entitles
the holder of such Claim to demand or receive accelerated payment of such Claim
after the occurrence of a default, (i) curing any such default that occurred
before or after the Petition Date, other than a default of a kind specified in
Section 365(b)(2) of the Bankruptcy Code, (ii) reinstating the maturity of such
Claim as such maturity existed before such default, (iii) compensating the
holder of such Claim for any damages incurred as a result of any reasonable
reliance by such holder on such contractual provision or such applicable law,
and (iv) not otherwise altering the legal, equitable, or contractual rights to
which the holder of such Claim is entitled.
1.99 "Reorganized Debtor(s)" means, individually, any of the reorganized
Debtors or their successors and, collectively, all of the reorganized Debtors or
their successors, on or after the Effective Date.
1.100 "Reorganized Amcast" means reorganized Amcast or its successor, on
and after the Effective Date.
1.101 "Restructuring Transactions" means the transactions described in
Section 6.3 of the Plan.
1.102 "Schedules" means the schedules of assets and liabilities and the
statements of financial affairs filed in the Bankruptcy Court by the Debtors, as
amended or supplemented from time to time in accordance with Rule 1009 of the
Bankruptcy Rules or orders of the Bankruptcy Court.
1.103 "Secured Claim" means a Claim that is secured by a Lien which is not
subject to avoidance under the Bankruptcy Code or otherwise invalid under the
Bankruptcy Code or applicable state law, on property in which an Estate has an
interest, or a Claim that is subject to setoff under Section 553 of the
Bankruptcy Code, to the extent of the value of the Claimholder's interest in the
Estate's interest in such property or to the extent of the amount subject to
setoff, as applicable; as determined by a Final Order pursuant to Section 506(a)
of the Bankruptcy Code, or in the case of setoff, pursuant to Section 553 of the
Bankruptcy Code, or in either case as otherwise agreed upon in writing by the
Debtors or the Reorganized Debtors and the holder of such Claim and approved by
the Bankruptcy Court in a stipulated Final Order following notice to the
Creditors' Committee or Liquidating Trustee, as applicable and an opportunity to
object.
1.104 "Stowe, Pennsylvania Property" means real property located in Stowe,
Pennsylvania, the legal description which is attached to the Plan as Exhibit E.
1.105 "Term Note A" means those certain senior secured term notes issued
by Reorganized Amcast in the aggregate amount of $13 million which will be
allocated among the Prepetition Secured Lenders and the DIP Facility Lenders in
accordance with the provisions of the Plan and which will be accorded priority
as specified in Exhibit A to the Plan.
1.106 "Term Note A Agreement" means that certain term note agreement among
Reorganized Amcast, the Prepetition Secured Lenders and the DIP Facility Lenders
with respect to the $13 million Term Note A.
1.107 "Term Note B" means those certain senior secured term notes issued
by the Reorganized Amcast in the aggregate amount of $51 million to be allocated
pro rata among the Prepetition Secured Lenders and which will be accorded
priority as specified in Exhibit A to the Plan.
1.108 "Term Note B Agreement" means that certain term note agreement among
Reorganized Amcast and the Prepetition Secured Lenders with respect to the $51
million Term Note
1.109 "Trade Agreement" means the agreements between the Debtors and the
Critical Vendors governing the terms of payment of the Key Continuing Vendor
Claims.
1.110 "Unimpaired" means, with respect to any Claim, that such Claim is
not impaired within the meaning of Section 1124 of the Bankruptcy Code.
1.111 "Unsecured Deficiency Claim" means the unsecured claim of the
Prepetition Secured Lenders representing the difference between the Face Amount
of their Claim against the Debtors and the amount of their Allowed Secured
Claim.
1.112 "Voting Deadline" means the deadline established by the Bankruptcy
Court by which the holders of Claims in Classes that are entitled to vote on the
Plan must submit the ballot indicating such Claimholder's vote on the Plan, in
accordance with the procedures set forth in the Disclosure Statement.
ARTICLE II
JOINT TREATMENT UNDER THE PLAN
2.1 Joint Treatment. This Plan is a joint plan of reorganization, pursuant
to which, except as otherwise provided in the Plan: (i) all Claims against each
Estate shall be deemed to be Claims against all Estates, any Proof of Claim
filed against one of the Debtors shall be deemed to be a single Claim filed
against all Estates, and all duplicate Proofs of Claim for the same Claim filed
against multiple Debtors shall be deemed expunged; (ii) except as otherwise
provided in the Plan, no distributions under this Plan shall be made on account
of Claims based upon intercompany obligations by and against the Debtors; (iii)
all Claims based upon prepetition unsecured guarantees by one Debtor in favor of
another Debtor (other than guarantees existing under any assumed executory
contracts or unexpired leases) shall be eliminated, and no distributions under
this Plan shall be made on account of Claims based upon such guarantees; and
(iv) for purposes of determining the availability of the right of setoff under
Section 553 of the Bankruptcy Code, the Debtors shall be treated as one entity
so that, subject to the other provisions of Section 553, prepetition debts due
to any of the Debtors may be set off against the prepetition debts owed by any
of the Debtors. Joint treatment as set forth in this Section 2.1 shall not merge
or otherwise affect the separate legal existence of each Debtor, other than with
respect to distribution rights under this Plan; such joint treatment shall have
no effect on valid, enforceable and unavoidable Liens, except for Liens that
secure a Claim that is eliminated by virtue of such joint treatment and Liens
against collateral that are extinguished by virtue of such joint treatment; and
such joint treatment shall not have the effect of creating a Claim in a class
different from the class in which a Claim would have been placed in the absence
of joint treatment. Joint treatment as set forth in this Section 2.1 shall not
affect the obligation of each of the Debtors, pursuant to Section 1930 of Title
28 of the United States Code, to pay quarterly fees to the Office of the United
States Trustee until such time as a particular Chapter 11 Case is closed,
dismissed or converted.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 Introduction. In accordance with Section 1123(a)(1) of the Bankruptcy
Code, Administrative Claims and Priority Tax Claims have not been classified,
and the respective treatment of such unclassified claims is set forth in Section
4.1 of the Plan.
A Claim or Interest is placed in a particular Class only to the extent
that the Claim or Interest falls within the description of that Class and such
Claim or Interest has not been paid, released, or otherwise settled prior to the
Effective Date. A Claim or Interest may be and is classified in other Classes to
the extent that any portion of the Claim or Interest falls within the
description of such other Classes.
3.2 Unimpaired Claims.
Class 1: Other Priority Claims
Class 1 consists of all Other Priority Claims.
3.3 Impaired Claims.
Class 2: Prepetition Secured Lender Claims
Class 2 consists of all Prepetition Secured Lender Claims.
Class 3: Other Secured Claims
Class 3 consists of separate sub Classes for each
Other Secured Claim against any of the Debtors.
Each sub Class is deemed to be a separate Class
for all purposes under the Bankruptcy Code,
including for voting purposes.
Class 4: Key Continuing Vendor Claims
Class 4 consists of all Key Continuing Vendor Claims.
Class 5: General Unsecured Claims
Class 5 consists of all General Unsecured Claims
including any Unsecured Deficiency Claim that
could be asserted by the Prepetition Secured
Lenders; provided, however, that the Prepetition
Secured Lenders (i) shall be deemed to waive,
effective if and only if the Plan is confirmed and
becomes effective, any recovery on such Unsecured
Deficiency Claim, but not their right to vote such
claim, and (ii) will not have any interest in the
assets to be distributed to the holders of Allowed
General Unsecured Claims.
Class 6: Intercompany Claims
Class 6 consists of all Intercompany Claims.
Class 7: Non Compensatory Damages Claims
Class 7 consists of all Non Compensatory Damages Claims.
3.4 Impaired Interests.
Class 8: Amcast Interests
Class 8 consists of all Interests of Amcast
3.5 Unimpaired Interests.
Class 9: Amcast Interests in Affiliates
Class 9 consists of all Amcast Interests in Affiliates.
ARTICLE IV
TREATMENT OF CLAIMS AND INTERESTS
4.1 Unclassified Claims.
(a) Administrative Claims. With respect to each Allowed
Administrative Claim, except as otherwise provided for herein, and subject
to the requirements of Sections 12.1 through 12.3 of the Plan, on, or as
soon as reasonably practicable after, the latest of (i) the Effective
Date, (ii) the date such Administrative Claim becomes an Allowed
Administrative Claim, or (iii) the date such Administrative Claim becomes
payable pursuant to any agreement between a Debtor and the holder of such
Administrative Claim, the holder of each such Allowed Administrative Claim
shall receive in full satisfaction, settlement, release, and discharge of
and in exchange for such Allowed Administrative Claim, (A) Cash equal to
the unpaid portion of such Allowed Administrative Claim or (B) such
different treatment as to which the applicable Debtor and the holder of
such Administrative Claim shall have agreed upon in writing; provided,
however, that Allowed Administrative Claims with respect to liabilities
incurred by a Debtor in the ordinary course of business during the Chapter
11 Case (the "Administrative Trade Claims") shall be paid in the ordinary
course of business in accordance with the terms and conditions of any
agreements relating thereto.
The DIP Facility Claims shall be deemed Allowed in their entirety for all
purposes of the Plan and the Chapter 11 Case. Each holder of an Allowed DIP
Facility Claim shall receive, on the later of the Effective Date or the date on
which such DIP Facility Claim becomes payable pursuant to any agreement between
the Debtors and the holder of such DIP Facility Claim, in full
satisfaction, settlement, release, and discharge of and in exchange for such
Allowed DIP Facility Claim, its share of Term Note A in a principal amount equal
to the amount of its Allowed DIP Facility Claim.
The Adequate Protection Claims held by any Prepetition Secured Lenders
shall be deemed satisfied in full by payments made in accordance with and
pursuant to the DIP Facility and the Amcast DIP Facility Order. Any replacement
or other Liens created under the DIP Facility shall terminate and shall have no
further force and effect as of the Effective Date, so long as all payments
required to be made under the Amcast DIP Facility Order have been made.
(b) Priority Tax Claims. Each holder of an Allowed Priority Tax
Claim shall receive, in full satisfaction, settlement, release, and
discharge of and in exchange for such Allowed Priority Tax Claim, (i) on,
or as soon as reasonably practicable after, the later of the Effective
Date or the date on which such Claim becomes an Allowed Claim, Cash equal
to the unpaid portion of such Allowed Priority Tax Claim, (ii) such
different treatment as to which the applicable Debtor and such holder
shall have agreed upon in writing, or (iii) at the Reorganized Debtors'
sole discretion, deferred Cash payments having a value, as of the
Effective Date, equal to such Allowed Priority Tax Claim, over a period
not exceeding six (6) years after the date of assessment of such Allowed
Priority Tax Claim; provided, however, that the Reorganized Debtors shall
have the right to pay any Allowed Priority Tax Claim, or the remaining
balance of any Allowed Priority Tax Claim, in full at any time on or after
the Effective Date, without premium or penalty. Should the Debtors elect
to pay the Allowed Priority Tax Claim over a period not exceeding six (6)
years, payments shall be made in equal quarterly installments of
principal, plus simple interest accruing from the Effective Date at 6% per
annum on the unpaid portion of such claim.
4.2 Unimpaired Classes of Claims and Interests.
(a) Class 1: Other Priority Claims. On, or as soon as reasonably
practicable after, the latest of (i) the Effective Date, (ii) the date on
which such Other Priority Claim becomes an Allowed Other Priority Claim,
or (iii) the date on which such Other Priority Claim becomes payable
pursuant to any agreement between a Debtor and the holder of such Other
Priority Claim, each holder of an Allowed Other Priority Claim shall
receive, in full satisfaction, settlement, release, and discharge of and
in exchange for such Allowed Other Priority Claim, either (A) Cash equal
to the unpaid portion of such Allowed Other Priority Claim or (B) such
different treatment as to which the applicable Debtor and such holder
shall have agreed upon in writing.
(b) Class 9: Amcast Interests in Affiliates. Each Debtor will, as a
Reorganized Debtor, continue to exist after the Effective Date as a
separate corporate entity and all Amcast Interests in Affiliates shall be
preserved.
4.3 Impaired Classes of Claims.
(a) Class 2: Prepetition Secured Lender Claims.
In full satisfaction of all Prepetition Secured Lender Claims under the
Prepetition Secured Credit Agreement, the Line of Credit Documents, the
Northwestern Note Agreement and the Principal Note Agreement (collectively, the
"Prepetition Transaction Documents"), the Prepetition Secured Lenders shall
receive the following after accounting for the sale of Lee Brass for a value of
$5 million (as more fully described in the Disclosure Statement):
(i) their pro rata share of the $13 million Term Note A, minus
the funded amount of the DIP Facility on the Effective Date, with
the payment and lien priorities, terms and conditions set forth in
the Term Note A Agreement;
(ii) their pro rata share of the $51 million Term Note B with
the payment and lien priorities, terms and conditions set forth in
the Term Note B Agreement; and
(iii) their pro rata share of 100% of the New Amcast Common
Stock issued as of the Effective Date (as Amcast Interests will be
canceled pursuant to Section 4.4 of the Plan).
The pro rata interests of the Prepetition Secured Lenders in the New
Amcast Common Stock, Term Note A and Term Note B shall only be traded as a
"unit" as set forth in the New Shareholders' Agreement. The Prepetition Secured
Lenders shall receive the distributions provided for in this Section 4.3 of the
Plan in full satisfaction, settlement, release, and discharge of and exchange
for all Claims arising under the Prepetition Transaction Documents, including
their Secured Claim and their Unsecured Deficiency Claim. The Unsecured
Deficiency Claim of the Prepetition Secured Lenders will be classified in Class
5 for voting purposes, but the Prepetition Secured Lenders shall not receive any
recovery on account of such Unsecured Deficiency Claim, effective if and only if
the Plan is confirmed and becomes effective, and will have no interest in the
Creditor Trust Assets to be distributed to holders of Allowed Class 5 Claims.
(b) (i) Class 3: Other Secured Claims. On the Effective Date, at the
option of the Reorganized Debtors, either (A) the legal, equitable, and
contractual rights of each holder of an Allowed Other Secured Claim shall
be Reinstated in accordance with the provisions of 11 U.S.C. Section
1124(2), provided, however, that any contractual right that does not
pertain to the payment when due of principal and interest on the
obligation on which such Claim is based, including, but not limited to,
financial covenant ratios, negative pledge covenants, covenants or
restrictions on merger or consolidation, covenants regarding corporate
existence, or covenants prohibiting certain transactions or actions
contemplated by the Plan or conditioning such transactions or actions on
certain factors, shall not be required to be reinstated in order for a
Claim to be considered Reinstated; (B) each holder of an Allowed Other
Secured Claim shall (I) retain the Liens securing such Allowed Other
Secured Claim and (II) receive deferred Cash payments totaling at least
the amount of such Allowed Other Secured Claim, of a
value, as of the Effective Date, of at least the value of such holder's
interest in the Estate's interest in such property; (C) the collateral
securing such Allowed Other Secured Claim shall be surrendered to the
holder of such Allowed Other Secured Claim; or (D) each holder of an
Allowed Other Secured Claim shall be paid in full in Cash on the Effective
Date. The Debtors' failure to object to any Other Secured Claim in the
Chapter 11 Case shall be without prejudice to the Debtors' or the
Reorganized Debtors' right to contest or otherwise defend against such
Claim in the appropriate forum when and if such Claim is sought to be
enforced by the Other Secured Claimholder. Notwithstanding Section 1141(c)
of the Bankruptcy Code or any other provision of the Bankruptcy Code, all
pre petition Liens on property of any Debtor held with respect to an Other
Secured Claim shall survive the Effective Date and continue in accordance
with the contractual terms of the underlying agreements governing such
Claim until such Allowed Claim is paid in full. Nothing in this Section
4.3(b) of the Plan or elsewhere in the Plan shall preclude the Debtors or
the Reorganized Debtors from challenging the validity of any alleged Lien
on any asset of a Debtor or the value of the property that secures any
alleged Lien.
(i) Subclass 3(i): Mechanics Lien Secured Claims. The holders
of Allowed Mechanics Lien Secured Claims shall, at the option of the
Reorganized Debtors, receive the treatment specified in Section
4.3(b)(i)(A), (B), (C), or (D) of the Plan above.
(c) Class 4: Key Continuing Vendor Claims.
Each Allowed Key Continuing Vendor Claim will be Allowed in the amount set
forth and paid in accordance with the terms of the Trade Agreement executed
between the Debtors and the Critical Vendor in accordance with the terms of the
Critical Vendor Order.
Payments scheduled to be made by the Debtors pursuant to the Trade
Agreement and Critical Vendor Order shall continue to be made by the Reorganized
Debtors following the Effective Date. Any other unsecured Claim that is, or
otherwise could have been, asserted by the holder of such Key Continuing Vendor
Claim will be disallowed.
(d) Class 5: General Unsecured Claims. In full satisfaction,
settlement, release and discharge of General Unsecured Claims, there shall
be paid, conveyed and/or assigned to the Creditor Trust for the benefit of
the holders of Allowed General Unsecured Claims (other than the Unsecured
Deficiency Claim held by the Prepetition Secured Lenders), the Creditor
Trust Assets. Proceeds realized from the receipt and/or disposition of
Creditor Trust Assets, together with the Cash Investment Yield realized
therefrom, and after payment of costs and expenses of the Creditor Trust,
shall be paid to holders of General Unsecured Claims (other than the
Unsecured Deficiency Claim held by the Prepetition Secured Lenders) on a
pro rata basis in accordance with procedures set forth in the Creditor
Trust Agreement to be filed as part of the Plan Supplement. Although the
Unsecured Deficiency Claim held by the Prepetition Secured Lenders is
included within Class 5 for voting purposes, no distribution will be made
on account of the Unsecured Deficiency Claim from the Creditor Trust or
otherwise under the Plan.
(e) Class 6: Intercompany Claims. No holders of an Intercompany
Claim shall receive or retain any property under the Plan on account of
such Claim and all Intercompany Claims shall be discharged as of the
Effective Date.
(f) Class 7: Non Compensatory Damages Claims. The holders of Non
Compensatory Damages Claims shall not receive or retain any property under
the Plan on account of such Claims. All Non Compensatory Damages Claims
shall be discharged as of the Effective Date.
4.4 Impaired Classes of Interests.
(a) Class 8: Amcast Interests. All Amcast Interests of any kind,
including without limitation, the Old Amcast Common Stock, or any warrants
or other agreements to acquire the same (whether or not arising under or
in connection with any employment agreement), shall be cancelled as of the
Effective Date and the holders thereof shall not receive or retain any
property under the Plan on account of such Interests.
4.5 Reservation of Rights Regarding Claims. Except as otherwise explicitly
provided in the Plan, nothing shall affect the Debtors' or the Reorganized
Debtors' rights and defenses, both legal and equitable, with respect to any
Claims, including, but not limited to, all rights with respect to legal and
equitable defenses to alleged rights of setoff or recoupment.
ARTICLE V
ACCEPTANCE OR REJECTION OF THE PLAN
5.1 Impaired Classes of Claims and Interests Entitled to Vote. Holders of
Claims and Interests in each Impaired Class of Claims or Interests are entitled
to vote as a Class to accept or reject the Plan, other than Classes that are
deemed to reject the Plan as provided in Sections 5.4 of the Plan. Accordingly,
the votes of holders of Claims in Classes 2, 3, 4, and 5 shall be solicited with
respect to the Plan.
5.2 Acceptance by an Impaired Class. In accordance with Section 1126(c) of
the Bankruptcy Code, and except as provided in Section 1126(e) of the Bankruptcy
Code, an Impaired Class of Claims shall have accepted the Plan if the Plan is
accepted by the holders of at least two thirds (2/3) in dollar amount and more
than one half (1/2) in number of the Allowed Claims of such Class that have
timely and properly voted to accept or reject the Plan.
5.3 Presumed Acceptances by Unimpaired Classes. Classes 1 and 9 are
Unimpaired under the Plan. Under Section 1126(f) of the Bankruptcy Code, holders
of such Unimpaired Claims are conclusively presumed to have accepted the Plan,
and the votes of such Unimpaired Claimholders shall not be solicited.
5.4 Classes Deemed to Reject Plan. Holders of Claims and Interests in
Classes 6, 7, and 8 are not entitled to receive or retain any property under the
Plan. Under Section 1126(g) of the Bankruptcy Code, such holders are deemed to
have rejected the Plan, and the votes of such holders shall not be solicited.
5.5 Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code. To
the extent that any Impaired Class rejects the Plan or is deemed to have
rejected the Plan, the Debtors shall request Confirmation of the Plan, as it may
be modified from time to time, under Section 1129(b) of the Bankruptcy Code. The
Debtors reserve the right to alter, amend, modify, revoke, or withdraw the Plan,
the Plan Supplement, or any Exhibit, including to amend or modify it to satisfy
the requirements of Section 1129(b) of the Bankruptcy Code, if necessary.
ARTICLE VI
MEANS FOR IMPLEMENTATION OF THE PLAN
6.1 Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtors. Except as otherwise provided herein (including with respect to the
Restructuring Transactions), each Debtor will, as a Reorganized Debtor, continue
to exist after the Effective Date as a separate corporate entity entitled to all
of the benefits and protections provided in the Confirmation Order, with all the
powers of a corporation under applicable law and without prejudice to any right
to alter or terminate such existence (whether by merger, dissolution or
otherwise) under applicable state law. Except for cash and other assets paid,
conveyed and/or assigned to the Creditor Trust as provided in Section 4.3(d) of
the Plan, as of the Effective Date, all property of the Estate of a Debtor, and
any property acquired by a Debtor or Reorganized Debtor under the Plan, will
vest in such Reorganized Debtor, free and clear of all Claims, liens, charges,
other encumbrances and Interests. On and after the Effective Date, each
Reorganized Debtor may operate its business and may use, acquire and dispose of
property without supervision or approval by the Bankruptcy Court and free of any
restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those
restrictions expressly imposed by the Plan or the Confirmation Order. Without
limiting the foregoing, each Reorganized Debtor may pay the charges that it
incurs on or after the Effective Date for Professionals' fees, disbursements,
expenses or related support services (including fees relating to the preparation
of Professional fee applications) without application to the Bankruptcy Court.
6.2 Articles of Incorporation, Code of Regulations, and/or Operating
Agreement. The Articles of Incorporation and/or Operating Agreement, and/or Code
of Regulations of each Debtor, as applicable, shall be amended as necessary to
satisfy the provisions of the Plan and the Bankruptcy Code and shall include,
among other things, pursuant to Section 1123(a)(6) of the Bankruptcy Code, a
provision prohibiting the issuance of non voting equity securities, but only to
the extent required by Section 1123(a)(6) of the Bankruptcy Code. The Articles
of Incorporation and/or Operating Agreement, and/or Code of Regulations, as
applicable, of the Reorganized Debtors shall be in substantially the forms of
such documents included in the Plan Supplement.
6.3 Restructuring Transactions.
(a) Restructuring Transactions Generally. On or after the
Confirmation Date, the applicable Debtors or Reorganized Debtors may enter
into such restructuring transactions and may take such actions as the
Debtors or Reorganized Debtors may determine to be necessary or
appropriate to effect a corporate restructuring of their respective
business or simplify the overall corporate structure of the Reorganized
Debtors (collectively, the "Restructuring Transactions"), all to the
extent not inconsistent with any other terms of the Plan. Such
Restructuring Transactions may include one or more mergers,
consolidations, restructurings, dispositions, liquidations or
dissolutions, as may be determined by the Debtors or the Reorganized
Debtors to be necessary or appropriate. The actions to effect these
transactions may include: (1) the execution and delivery of appropriate
agreements or other documents of merger, consolidation, restructuring,
disposition, liquidation or dissolutions containing terms that are
consistent with the terms of the Plan and that satisfy the requirements of
applicable state law and such other terms to which the applicable entities
may agree; (2) the execution and delivery of appropriate instruments of
transfer, assignment, assumption or delegation of any asset, property,
right, liability, duty or obligation on terms consistent with the terms of
the Plan and having such other terms to which the applicable entities may
agree; (3) the filing of appropriate certificates or articles of merger,
consolidation, dissolution or change in corporate form pursuant to
applicable state law; and (4) all other actions that may be required by
applicable state law in connection with such transactions. Consistent with
Section 6.3(b) of the Plan, with respect to any Debtor or Reorganized
Debtor, the documents implementing any Restructuring Transaction shall
clearly grant to creditors of such Debtor or Reorganized Debtor status as
third party beneficiaries to enforce rights granted in this Plan against
the surviving, resulting or acquiring corporation or entity.
(b) Obligations of Any Successor in a Restructuring Transaction. The
Restructuring Transactions may result in substantially all of the
respective assets, properties, rights, liabilities, duties and obligations
of certain of the Reorganized Debtors vesting in one or more surviving,
resulting or acquiring corporations. In each case in which the surviving,
resulting or acquiring corporation in any such transaction is a successor
to a Reorganized Debtor thereby receiving all of the benefits and
protections under the Plan, such surviving, resulting or acquiring
corporation will perform the obligations of the applicable Reorganized
Debtor pursuant to the Plan to pay or otherwise satisfy the Allowed Claims
against such Reorganized Debtor, except as provided in any contract,
instrument or other agreement or document effecting a disposition to such
surviving, resulting or acquiring corporation, which may provide that
another Reorganized Debtor will perform such obligations.
(c) Environmental Responsibilities. Nothing in the Plan or the
Confirmation Order constitutes an approval or disapproval of any
post-confirmation transfers of the Debtors' properties. To the extent that
environmental liability exists with respect to any property currently
owned and/or operated by a particular Debtor (the "Owner and/or
Operator"), no post-confirmation restructuring transaction shall be
consummated which has the effect of relieving the current Owner and/or
Operator of such environmental obligations as it may have under the
applicable provisions of federal and state law.
(d) Characterization as a Tax-free Reorganization. The Debtors and
Reorganized Debtors intend for the Restructuring Transactions to qualify
as tax-free reorganizations pursuant to Internal Revenue Code section
368(a) and the Treasury Regulations thereunder.
6.4 Funding. On the Effective Date, the Exit Facility, as evidenced by a
new revolving credit facility, new revolving promissory notes, if requested by
any of the lenders under the Exit Facility, a Term Note A and a Term Note B
reflecting an amendment and restatement of the obligations arising under the DIP
Facility and the Prepetition Transaction Documents consistent with the treatment
set forth herein, and all other documents, instruments, and agreements to be
entered into, delivered, or confirmed thereunder or in connection therewith on
the Effective Date, shall become effective. The new revolving promissory notes
issued and all obligations thereunder shall be repaid as set forth in such
notes, the Exit Facility and related documents.
6.5 Cancellation of the Prepetition Transaction Documents and Issuance of
New Senior Notes. On the Effective Date and after receipt of all distributions
under the Plan to which the Prepetition Secured Lenders are entitled, except as
otherwise provided for herein and in the amended and restated credit agreement
evidencing the Exit Facility, (a) the Prepetition Transaction Documents and any
other related agreement evidencing or creating any indebtedness or obligation of
any of the Debtors shall be cancelled, and (b) the obligations of the Debtors
under the Prepetition Transaction Documents and any other note, bond, or
indenture evidencing or creating any indebtedness or obligations of Amcast to
the Prepetition Secured Lenders shall be discharged, as of the Effective Date.
The Prepetition Secured Lenders shall receive in satisfaction of Claims
related to the Prepetition Transaction Documents, in addition to the New Amcast
Common Stock described in Section 6.7 of the Plan, their pro rata share of Term
Note A (net of the amount distributed to the holders of Allowed DIP Facility
Claims), and Term Note B, with the payment and lien priorities, terms and
conditions as set forth in Exhibit A to this Plan.
6.6 Cancellation of Old Securities and Agreements. On the Effective Date,
except as otherwise provided for herein, (a) the Old Securities and any other
note, bond, or indenture evidencing or creating any indebtedness or obligation
of any of the Debtors shall be cancelled, and (b) the obligations of Amcast
under any agreements, indentures, or certificates of designations governing the
Old Securities and any other note, bond, or indenture evidencing or creating any
indebtedness or obligation of Amcast shall be discharged.
6.7 Authorization and Issuance of New Securities.
(a) The Reorganized Debtors shall, in accordance with the New
Shareholders' Agreement and subject to the terms and conditions set forth
therein, (i) authorize on the Effective Date all shares of New Amcast
Common Stock necessary to consummate the transactions contemplated herein;
and (ii) issue on the applicable Distribution Dates shares of New Amcast
Common Stock representing 100% of the fully diluted shares of New Amcast
Common Stock to the Prepetition Secured Lenders in accordance with their
pro rata interest.
(b) The New Amcast Common Stock issued under the Plan shall be
subject to dilution based upon any other shares of New Amcast Common Stock
issued post emergence.
(c) The New Amcast Common Stock to be issued and distributed
pursuant to the Plan shall be issued as partial satisfaction of Allowed
Claims in Class 2 and shall be exempt from registration under applicable
securities laws pursuant to Section 1145 of the Bankruptcy Code or other
applicable exemption.
6.8 Directors of Reorganized Debtors. The initial board of directors of
Reorganized Amcast shall be comprised of five (5) members to be selected by the
New Shareholders of Reorganized Amcast in accordance with the New Shareholders
Agreement. These individuals will be identified in the Plan Supplement.
6.9 Officers of Reorganized Debtors. The current officers of the Debtors
shall serve initially in the same capacities after the Effective Date for the
Reorganized Debtors as prior to the Effective Date, until replaced or removed in
accordance with the Articles of Incorporation and Code of Regulations of the
Reorganized Debtors and their respective employment agreements.
6.10 Revesting of Assets; Releases of Liens; Effective Date
Restructurings. Except for the Creditor Trust Assets, the property of each
Debtor's Estate, together with any property of each Debtor that is not property
of its Estate and that is not specifically disposed of pursuant to the Plan
shall revest in the applicable Debtor on the Effective Date. Thereafter, each
Reorganized Debtor may operate its business and may use, acquire, and dispose of
such property free of any restrictions of the Bankruptcy Code, the Bankruptcy
Rules, and the Bankruptcy Court. As of the Effective Date, all such property of
each Reorganized Debtor shall be free and clear of all Claims and Interests,
except as specifically provided in the Plan or the Confirmation Order.
6.11 Indemnification of Debtors' Directors, Officers, and Employees. Upon
the Effective Date, the Articles of Incorporation, Code of Regulations and
Operating Agreement, as applicable, of the Reorganized Debtors shall, if
necessary, be amended so that they contain provisions that (i) eliminate the
personal liability of the Debtors' former, present, and future directors and
officers for monetary damages resulting from breaches of their fiduciary duties
(other than for willful misconduct or gross negligence), and (ii) require such
Reorganized Debtors, subject to appropriate procedures, to indemnify those of
the Reorganized Debtors' directors, officers, and other key employees serving
immediately following the Effective Date for all claims and actions (other than
for willful misconduct or gross negligence), including, without limitation, for
pre-Effective Date acts and omissions. Notwithstanding anything herein, no
actions will be permitted to amend documents or eliminate personal liability of
any party with respect to the Creditor Trust Causes of Action or any claim for
breach of fiduciary duty with respect to the defined benefit pension plan
covered by ERISA (as defined in Section 7.5 of the Plan).
6.12 Preservation of Rights of Action and Waiver of Certain Avoidance
Actions. Except as otherwise provided in the Plan or the Confirmation Order, or
in any contract, instrument, release, indenture, or other agreement entered into
in connection with the Plan, in accordance with Section 1123(b) of the
Bankruptcy Code, on the Effective Date, each Debtor or Reorganized Debtor shall
retain all of its respective Litigation Rights that such Debtor or Reorganized
Debtor may hold against any Person, including without limitation, the Litigation
Rights identified in Exhibit F attached hereto and any claims that the Debtors
or Reorganized Debtors may have against any employee (other than any director or
officer), including without limitation, claims based upon an alleged breach of a
confidentiality, non-compete or any other contractual or fiduciary obligation;
provided, however, that there shall be assigned exclusively to the Creditor
Trust for the benefit of the holders of Allowed General Unsecured Claims the
Creditor Trust Causes of Action. The Reorganized Debtors will have no rights or
interests in the Creditor Trust Causes of Action. Each Debtor or Reorganized
Debtor shall retain and may enforce, prosecute, settle, or compromise (or
decline to do any of the foregoing) all such Litigation Rights. Each Debtor or
Reorganized Debtor or its respective successor(s) may pursue such retained
Litigation Rights as appropriate, in accordance with the best interests of the
Reorganized Debtors or their successor(s) who hold such rights in accordance
with applicable law and consistent with the terms of the Plan. On the Effective
Date, the Reorganized Debtors (or, with respect to the Creditor Trust Causes of
Action, the Creditor Trust) shall succeed to all of the rights, privileges and
immunities of the Debtors, including, without limitation, the attorney client
privilege and the time periods in which any claims may be brought under Sections
108 and 546 of the Bankruptcy Code or otherwise; provided, however, the Creditor
Trust shall not succeed to the Debtors' attorney-client privilege.
Notwithstanding any of the foregoing to the contrary, the Debtors shall on the
Effective Date of the Plan waive and release all Persons who are not "insiders"
within the meaning of Section 101(31) of the Bankruptcy Code from any claim or
cause of action under Sections 510, 544, 547, 548, 549, 550 and 553 of the
Bankruptcy Code (other than with respect to any such claim or cause of action
that is a Creditor Trust Cause of Action, which are hereby preserved).
The list of actions specifically identified on Exhibit F is not exhaustive
and if a specific cause of action or defendant is not identified thereon, it is
because such action or defendant is not known to the Debtors at this time. On
behalf of the Debtors and their Estates, the Debtors preserve for the
Reorganized Debtors the rights to any other Litigation Rights that may be
identified on or after the Effective Date during litigation and discovery.
Exhibit F to the Plan is hereby incorporated by reference as if fully set forth
herein.
6.13 Effectuating Documents; Further Transactions. The chief executive
officer, the president, the chief financial officer, or any other appropriate
officer of the Reorganized Debtors, as the case may be, shall be authorized to
execute, deliver, file, or record such contracts, instruments, releases,
indentures, and other agreements or documents, and take such actions as may be
necessary or appropriate to effectuate and further evidence the terms and
conditions of the Plan. The secretary or assistant secretary of any applicable
Debtor, as the case may be, shall be authorized to certify or attest to any of
the foregoing actions.
6.14 Exemption From Certain Transfer Taxes. Pursuant to Section 1146(c) of
the Bankruptcy Code, any transfers from a Debtor to a Reorganized Debtor or any
other Person in the United States pursuant to the Plan, including any Liens
granted by the Debtors to secure the Exit Facility and the New Senior Notes,
shall not be taxed under any law imposing a stamp tax or other similar tax. Such
exemption specifically applies, without limitation, to all documents necessary
to evidence and implement distributions under the Plan, including the documents
contained in the Plan Supplement.
6.15 Corporate Action. On the Effective Date, the adoption and/or filing
of the Articles of Incorporation of the Reorganized Debtors and the Code of
Regulations of the Reorganized Debtors, the appointment of directors and
officers of the Reorganized Debtors, and all actions contemplated hereby shall
be authorized and approved in all respects pursuant to the Plan. All matters
provided for herein involving the corporate structure of the Debtors or
Reorganized Debtors, and any corporate action required by the Debtors or
Reorganized Debtors in connection with the Plan, shall be deemed to have
occurred and shall be in effect, without any requirement of further action by
the shareholders or directors of the Debtors or Reorganized Debtors. On the
Effective Date, the appropriate officers of the Reorganized Debtors and members
of the board of directors or managing member of the Reorganized Debtors are
authorized and directed to issue, execute and deliver the agreements, documents,
securities, and instruments contemplated by the Plan in the name of and on
behalf of the Reorganized Debtors without the need for any approvals,
authorizations or consents except for express consents required under this Plan.
6.16 Sale of Stowe, Pennsylvania Property. The Reorganized Debtors shall
have the right, in their sole discretion, to retain for their use, sell, donate
or abandon (subject to compliance with applicable environmental laws and
regulations) the Stowe, Pennsylvania Property. In the event the Stowe,
Pennsylvania Property is sold, fifty percent (50%) of the Net Stowe Proceeds
realized from such sale shall be paid to the Creditor Trust for the benefit of
the holders of Allowed Claims in Class 5. As used herein, the term "Net Stowe
Proceeds" shall mean the amount of gross proceeds realized from the sale, less
any amounts required to satisfy liens on the property and any and all carrying
costs, including, without limitation, taxes, environmental costs, brokerage
fees, appraisal fees, and legal fees incurred on and after the Effective Date of
the Plan through a closing of the sale.
6.17 The Creditor Trust.
(a) On the Effective Date, the Creditor Trust shall be created, settled,
and exist pursuant to its declaration of trust.
(b) On the Effective Date, the Debtors shall transfer all right, title,
and interest to the Creditor Trust Assets to the Creditor Trust, and all
Creditor Trust Assets shall automatically and irrevocably vest in the Creditor
Trust without further action on the part of the Debtors, the Reorganized
Debtors, or the Liquidating Trustee, and with no reversionary interest in the
Debtors or the Reorganized Debtors.
(c) The Liquidating Trustee.
(i) The Liquidating Trustee shall be designated by the Creditors'
Committee, subject to the approval of the Bankruptcy Court and the consent of
the Debtors, which consent shall not be unreasonably withheld. The Liquidating
Trustee shall be independent of the Debtors and the Reorganized Debtors. The
Creditors' Committee shall file a notice at least ten (10) days prior to the
Confirmation Hearing designating the person selected as Liquidating Trustee, and
shall include an affidavit from the proposed Liquidating Trustee demonstrating
that such individual is "disinterested" (within the meaning of Section 101(14)
of the Bankruptcy Code). For the purposes of this paragraph, no person shall be
deemed not "disinterested" merely as a
consequence of serving as a professional retained by the Committee in the
Chapter 11 Cases. If approved by the Bankruptcy Court, the person so designated
shall become the Liquidating Trustee on the Effective Date. The Liquidating
Trustee shall have and perform all of the duties, responsibilities, rights, and
obligations set forth in the Creditor Trust Agreement.
(ii) The Liquidating Trustee shall have full authority to take any
steps necessary to administer the Trust, including, without limitation, the duty
and obligation to (A) liquidate Creditor Trust Assets, (B) make and file
objections to Claims in Class 5 or other Classes pursuant to authority granted
herein and resolve Disputed Claims in Class 5; (C) make distributions provided
under the Plan to holders of Allowed Claims in Class 5. The Liquidating Trustee
may retain such professionals as it deems necessary to accomplish these tasks.
With respect to its authority to liquidate the Creditor Trust Assets, the
Liquidating Trustee may enter into agreements and settlements.
(d) The Trust Advisory Board.
(i) An advisory board (the "Trust Advisory Board") shall be created
for the Creditor Trust and shall be comprised of up to three (3) members, each
of whom shall be designated by the Creditors' Committee. The Creditors'
Committee shall give the Debtors written notice of the identities of such
members and file such notice with the Bankruptcy Court on a date that is not
less than ten (10) days prior to the Confirmation Hearing.
(ii) The Trust Advisory Board shall adopt such bylaws as it may deem
appropriate. The Liquidating Trustee shall consult regularly with the Trust
Advisory Board when carrying out the purpose and intent of the Creditor Trust.
(iii) The Liquidating Trustee and members of the Trust Advisory
Board shall be entitled to compensation and to reimbursement of the reasonable
and necessary expenses incurred by them in carrying out the purpose of the
Creditor Trust in accordance with the Creditor Trust Agreement. Such
compensation and reimbursement shall be payable solely from the Creditor Trust.
(iv) The Liquidating Trustee may be removed by the Bankruptcy Court
for cause shown or pursuant to the terms of the Creditor Trust Agreement. In the
event of the resignation or removal of the Liquidating Trustee, the Trust
Advisory Board shall, by majority vote, designate a person to serve as successor
Liquidating Trustee.
(v) Upon the certification by the Liquidating Trustee that all
Creditor Trust Assets have been liquidated, distributed, abandoned, or otherwise
disposed of, the members of the Trust Advisory Board shall resign their
positions, whereupon they shall be discharged from further duties and
responsibilities.
(e) Expenses incurred after the Effective Date associated with the
administration of the Creditor Trust, including those rights, obligations, and
duties described in the Plan, shall be the sole responsibility of, and paid by,
the Creditor Trust, and may be paid without Court approval.
(f) The Creditor Trust Agreement may include reasonable and customary
indemnification provisions and any such indemnification shall be the sole
responsibility of, and be paid by, the Creditor Trust.
(g) Upon the transfer of the assets to the Creditor Trust, the Debtors,
their Estates, the Reorganized Debtors, and the Disbursing Agent shall have no
other or further rights or obligations with respect to the Creditor Trust except
as specifically set forth in the Plan. Notwithstanding the foregoing, the
Reorganized Debtors and any acquiror of the Reorganized Debtors' assets shall,
upon reasonable notice, make available to the Liquidating Trustee reasonable
access during normal business hours to personnel and books and records of the
Debtors or Reorganized Debtors to enable the Liquidating Trustee to perform the
Liquidating Trustee's tasks under the Creditor Trust Agreement and Plan;
provided, however that none of the Reorganized Debtors or any acquiror of the
Reorganized Debtors' assets shall be required to make expenditures in response
to such requests determined by them to be unreasonable. None of the Reorganized
Debtors or an acquiror of the Reorganized Debtors' assets shall be entitled to
compensation or reimbursement (including reimbursement for professional fees)
with respect to fulfilling their obligations as set forth in this paragraph. No
requests for such assistance may interfere with the operations of the
Reorganized Debtors or the operations of any entity that acquires any of the
Reorganized Debtors' assets.
(h) The Creditor Trust generally is intended to be treated for federal
income tax purposes as a liquidating trust for the benefit of creditors or
claimants within the meaning of Treasury Regulations Section 301.7701-4(d) and
in accordance with IRS Revenue Precedent 94-45. Accordingly, the distributions
to the Creditor Trust in respect of holders of Allowed Class 5 Claims shall be
treated for all purposes of the Internal Revenue Code as (i) a transfer of such
distribution to such creditors who are the beneficiaries of the Creditor Trust;
and (ii) a transfer to the Creditor Trust by the beneficiary-creditors, who will
be treated as the grantors and deemed owners of the Creditor Trust Assets. The
Liquidating Trustee shall be responsible for filing all federal, state and local
tax returns for the Creditor Trust as a grantor trust pursuant to applicable
Treasury Regulations, and any income of the Creditor Trust will be treated as
subject to tax on a current basis.
(i) The Creditor Trust Agreement will provide that the Liquidating Trustee
may pay taxes from the Creditor Trust Assets as appropriate. In addition, the
Creditor Trust Agreement will require consistent valuation of the property
contributed to the Creditor Trust by the Liquidating Trustee and the
beneficiaries-creditors for all federal income tax purposes. The Creditor Trust
Agreement will provide that the sole purposes of the Creditor Trust will be to
(i) collect and maintain any Creditor Trust Assets for the benefit of
beneficiaries-creditors, (ii) liquidate (including objecting to Claims pursuant
to the provisions of the Plan and determining the proper recipients and amounts
of distributions to be made from the Creditor Trust) and distribute the assets
transferred to it for the benefit of the beneficiaries-creditors who are
determined to hold Allowed Class 5 Claims as expeditiously as reasonably
possible, (iii) not engage in any trade or business, and (iv) terminate upon the
completion of such liquidation and distribution. The Creditor Trust Agreement
shall provide that termination of the trust shall occur no later than five (5)
years after the Effective Date, unless the Bankruptcy Court shall approve an
extension based upon a finding that such an extension is necessary for the
Creditor Trust to complete its claims resolution and liquidating purpose. The
Creditor Trust Agreement shall also
limit the investment powers of the Liquidating Trustee in accordance with IRS
Revenue Procedure 94-45 and shall also limit the investment powers of the
Liquidating Trustee in accordance with IRS Revenue Procedure 94-45 and shall
require the Creditor Trust to distribute at least annually to the
beneficiary-creditors (as such may have been determined at such time) its net
income (net of Taxes paid, if any), except for amounts retained as reasonably
necessary to maintain the value of the Creditor Trust Assets or to meet claims
and contingent liabilities.
6.18 Preservation of Creditor Trust Causes of Action. On the Effective
Date, all Creditor Trust Causes of Action shall be preserved and shall vest in
the Creditor Trust. Specific causes of action included in the Creditor Trust
Causes of Action consist of the potential actions described and identified on
Exhibit G to the Plan and on Appendix G to the Disclosure Statement. The list of
actions specifically identified on Exhibit G is not exhaustive and if a specific
cause of action or defendant is not identified thereon, it is because such
action or defendant is not known to the Creditors' Committee at this time. On
behalf of the Debtors and their Estates, the Debtors preserve for the Creditor
Trust the rights to any other Creditor Trust Causes of Action that may be
identified on or after the Effective Date during litigation and discovery.
Exhibit G to the Plan is hereby incorporated by this reference as if fully set
forth herein.
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
7.1 Deemed Rejection of Executory Contracts and Leases.
(a) Except as otherwise provided in the Plan, or as identified in
any pending motion to reject, or in any contract, instrument, release,
indenture, or other agreement or document entered into in connection with
the Plan, as of the Effective Date, each Debtor shall be deemed to have
rejected each executory contract and unexpired lease to which it is a
party unless such contract or lease (i) was previously assumed or rejected
by such Debtor, (ii) previously expired or terminated pursuant to its own
terms, (iii) is the subject of any pending motion, including to assume, to
assume on modified terms, to reject or to make any other disposition filed
by a Debtor on or before the Confirmation Date, or (iv) is listed on the
schedule of executory contracts to be assumed by the Debtors, attached as
part of the Plan Supplement. The Confirmation Order shall constitute an
order of the Bankruptcy Court under Section 365(a) of the Bankruptcy Code
approving the contract and lease assumptions and rejections described
above, as of the Effective Date.
(b) Each executory contract and unexpired lease that is assumed and
relates to the use, ability to acquire or occupancy of real property,
shall include (i) all modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any
agreement, instrument, or other document that in any manner affects such
executory contract or unexpired lease, and (ii) all executory contracts or
unexpired leases appurtenant to the premises, including all easements,
licenses, permits, rights, privileges, immunities, options, rights of
first refusal, powers, uses, reciprocal easement agreements, vaults,
tunnel or bridge agreements or franchises, and any other interests in real
estate or rights in rem related to such premises, unless any of the
foregoing agreements have been rejected pursuant to an order of the
Bankruptcy Court.
(c) To the extent that any executory contract or unexpired lease to
which one of the Debtors is a party is contributed to another entity and
is listed on the schedule of executory contracts to be assumed by the
Debtors, such executory contract or unexpired lease shall be deemed
assumed and assigned to such entity on the Effective Date, unless such
contract or lease (i) was previously rejected by such Debtor, (ii)
previously expired or terminated pursuant to its own terms, or (iii) is
the subject of any pending motion to make any other contrary disposition
on or before the Confirmation Date.
7.2 Cure Payments Related to Assumption of Executory Contracts and Leases.
Any Cure amounts that the Debtors believe are associated with executory
contracts or unexpired leases proposed to be assumed will be set forth in the
Plan Supplement. Such Cure amounts will be paid by the Debtors in cash in full
on the Effective Date, or as soon as practicable thereafter, to the respective
parties owed such amounts, in accordance with Section 365(b)(1) of the
Bankruptcy Code, except that in the event of a dispute regarding the amount of
any Cure payments, the Cure payments required by Section 365(b)(1) of the
Bankruptcy Code shall be made by the Debtors only after the entry of a Final
Order of the Bankruptcy Court resolving the dispute or after the parties have
otherwise reached agreements. If a party disputes the Cure amount set forth in
the Plan Supplement (or if no Cure amount is indicated as being owed in the Plan
Supplement for a particular executory contract or unexpired lease and an
affected party believes there is a Cure amount owing), or otherwise objects to
assumption pursuant to Section 365(b)(1) of the Bankruptcy Code and pursuant to
the Plan, then the affected party(ies) to the executory contract or unexpired
lease should file a written objection and serve it upon the Debtors' counsel,
which objection should be filed and served so as to be received three (3) days
prior to the scheduled Confirmation Hearing. A party's failure to file and serve
such an objection three (3) days prior to the Confirmation Hearing will be
deemed a waiver of any objection to assumption or to the Cure amounts set forth
in the Plan Supplement, and the Debtors will present an order to the Court at
the Confirmation Hearing that will provide for approval of the assumption and
the Cure amounts, as set forth in the Plan Supplement, which order will be
binding on parties in interest receiving the Plan Supplement.
7.3 Right to Assume Contracts and Leases. The Debtors reserve the right,
at any time up to two (2) business days prior to Confirmation to file a motion
to assume any executory contract or unexpired lease to which any Debtor is a
party regardless of whether such contract was previously on the schedule of
executory contracts to be assumed, subject to a subsequent hearing which may
occur at the Confirmation Hearing or a later date. Any executory contracts or
unexpired leases that expire by their terms prior to the Effective Date are
deemed to be rejected.
7.4 Rejection Damages Bar Date. If the rejection by a Debtor, pursuant to
the Plan or otherwise, of an executory contract or unexpired lease results in a
Claim, then such Claim shall
be forever barred and shall not be enforceable against any Debtor or Reorganized
Debtor or the properties of any of them unless a Proof of Claim is filed with
the clerk of the Bankruptcy Court and served upon counsel to the Debtors and
counsel to the Creditors Committee, within thirty (30) days after (i) entry of
the order authorizing the rejection of such executory contract or unexpired
lease, or (ii) the Effective Date, as applicable. The foregoing applies only to
Claims arising from the rejection of an executory contract or unexpired lease;
any other Claims held by a party to a rejected contract or lease shall have been
evidenced by a Proof of Claim filed by earlier applicable Bar Dates or shall be
barred and unenforceable.
7.5 Compensation and Benefit Programs.
(a) With the exception of (I) the Debtors' defined benefit pension
plan covered by Title IV of the Employee Retirement Security Act of 1974,
as amended ("ERISA") for which the Debtors have received approval for a
distress termination pursuant to the provisions of Section 4041 of ERISA,
and (II) two (2) defined contribution plans providing for qualified cash
or deferred arrangements, as described in section 401(k) of the Internal
Revenue Code, and except to the extent an employee compensation or benefit
program of any of the Debtors (i) has been previously assumed or rejected
by an order of the Bankruptcy Court on or before the Confirmation Date, or
(ii) is the subject of a pending motion to assume filed by a Debtor on or
before the Confirmation Date, or (iii) has been previously terminated, or
(iv) has been provided for in subsections (b) and (c) of this Section 7.5,
all employee compensation and benefit programs of the Debtors, including
all pension and retirement plans (including, without limitation, each of
the Debtors' supplemental executive retirement plans, health and welfare
plans) and all programs subject to Sections 1114 and 1129(a)(13) of the
Bankruptcy Code, entered into before the Petition Date and not since
terminated, shall be deemed to be, and shall be treated as though they
are, executory contracts that are rejected under the Plan, subject to the
Debtors' compliance with the provisions of Sections 1113 and 1114 of the
Bankruptcy Code, to the extent applicable.
(b) The Agreed Order Authorizing Debtors to Implement Key Employee
Retention Program, entered by the Bankruptcy Court on February 14, 2005
shall be incorporated herein by reference and all rights, claims,
interests, entitlements, and obligations of the Debtors under such order
and under the KERP Plan approved by such order shall continue in full
force and effect as obligations of the Reorganized Debtors.
(c) The provisions of the Bankruptcy Court's Order Authorizing the
Debtors to Pay Prepetition Wages, Compensation and Employee Benefits,
entered on December 3, 2004 (the "Employee Benefits Order"), shall remain
in effect until the Effective Date of the Plan. In accordance with the
Employee Benefits Order, Debtors shall, in the ordinary course of
business, pay all valid prepetition claims, assessments and premiums
arising under their benefits program(s).
(d) The provisions of the Bankruptcy Court's Order Authorizing
Continuation of Workers' Compensation and Employers' Liability Program and
Policies and payment of Certain Prepetition Obligations in Respect
Thereof, entered on December 3, 2004 (the "Workers' Compensation Order"),
shall remain in effect until
the Effective Date of the Plan. In accordance with the Workers'
Compensation Order, discretionary authority was provided to the Debtors to
pay certain prepetition obligations arising under their workers'
compensation policies. In accordance with such discretion, the Debtors
have paid the prepetition workers' compensation obligations in states in
which they will continue their operations and have opted not to pay such
prepetition obligations in other states where they no longer operate or
will discontinue operations. Claims based on prepetition workers'
compensation obligations in states in which the Reorganized Debtors will
not operate will be discharged under the terms of the Plan. Claims based
on prepetition workers' compensation obligations in states in which the
Reorganized Debtors will continue to operate will be paid in the Debtors'
discretion after the Effective Date.
7.6 Indemnification Obligations.
(a) In addition to Indemnification Obligations that are contained
in contracts that are assumed by the Debtors, Indemnification Obligations
owed to any present Professionals retained by the Debtors pursuant to
Sections 327 or 328 of the Bankruptcy Code and Indemnification Obligations
owed to directors and officers who were employed with or who served the
Debtors as of the Petition Date, shall be deemed to be, and shall be
treated as though they are, executory contracts that are assumed pursuant
to Section 365 of the Bankruptcy Code under the Plan. All other
Indemnification Obligations shall be deemed to be, and shall be treated as
though they are, executory contracts that are rejected pursuant to Section
365 of the Bankruptcy Code under the Plan pursuant to the Confirmation
Order (unless assumed or rejected by another Final Order).
(b) With respect to the rights of all present and former
directors, officers and employees of the Debtors who are entitled to
assert against the Debtors any Indemnification Obligation in respect of
any claims, demands, suits, causes of action or proceedings against such
individuals based upon any act or omission related to such individuals'
service (other than for willful misconduct or gross negligence) with, for,
or on behalf of the Debtors (the "Indemnification Rights"): (i) all
Indemnification Rights shall be released and discharged as of the
Effective Date except for those Indemnification Rights held by any
officers and directors who were employed with or who served the Debtors on
or after the Petition Date (the "Indemnitees") for whom Indemnification
Obligations are assumed pursuant to Section 7.6(a) of the Plan and any
Indemnitee that serves as a director, officer or employee of the
Reorganized Debtors immediately following the Effective Date together with
any Indemnification Rights held by any Indemnitee on account of events
occurring on or after the Petition Date (the "Continuing Indemnification
Rights") (which shall remain in full force and effect to the fullest
extent allowed by law or contract on and after the Effective Date and
shall not be modified, reduced, discharged, or otherwise affected in any
way by the Chapter 11 Case); (ii) the Debtors or the Reorganized Debtors
covenant to maintain directors' and officers' insurance providing coverage
for all Indemnitees for a period of two (2) years after the Effective Date
in at least the scope and amount as currently maintained by the Debtors,
shall maintain tail coverage under policies in existence as of the
Effective Date, to the fullest extent permitted by such provisions, in
each case insuring such
parties in respect of any claims demands, suits, causes of action, or
proceedings against such Persons based upon any act or omission related to
such Person's service with, for or on behalf of the Debtors in at least
the scope and amount as currently maintained by the Debtors (the
"Insurance Coverage") and hereby further indemnify such Indemnitees for
any deductible or retention amount that may be payable in connection with
any claim covered under either the foregoing Insurance Coverage or any
prior similar policy; (iii) the insurers who issue the Insurance Coverage
are authorized to pay any professional fees and expenses incurred in
connection with any action relating to any Indemnification Rights and
Continuing Indemnification Rights; and (iv) the Debtors or the Reorganized
Debtors hereby indemnify Indemnitees with Continuing Indemnification
Rights and agree to pay for any deductible or retention amount that may be
payable in connection with any claim covered under either the foregoing
Insurance Coverage or any prior similar policy.
7.7 Extension of Time to Assume or Reject. Notwithstanding anything set
forth in Article VII of the Plan to the contrary, in the event of a dispute as
to whether a contract is executory or a lease is unexpired, the Debtors' right
to move to assume or reject such contract or lease shall be extended until the
date that is thirty (30) days after entry of a Final Order by the Bankruptcy
Court determining that the contract is executory or the lease is unexpired. The
deemed rejection provided for in Section 7.1(a) of the Plan shall not apply to
any such contract or lease, and any such contract or lease shall be assumed or
rejected only upon motion of the Debtors following the Bankruptcy Court's
determination that the contract is executory or the lease is unexpired.
7.8 Claims Arising From Assumption or Rejection. All Allowed Claims
arising from the assumption of any executory contract or unexpired lease shall
be treated as Administrative Claims pursuant to Section 4.1(a) of this Plan; all
Allowed Claims arising from the rejection of an executory contract or unexpired
lease shall be treated as General Unsecured Claims pursuant to Section 4.3(d) of
this Plan unless otherwise ordered by Final Order of the Bankruptcy Court; and
all other Allowed Claims relating to an executory contract or unexpired lease
shall have such status as they may be entitled to under the Bankruptcy Code as
determined by Final Order of the Bankruptcy Court.
ARTICLE VIII
PROVISIONS GOVERNING DISTRIBUTIONS
8.1 Distributions for Claims Allowed as of Effective Date. Except as
otherwise provided herein or as ordered by the Bankruptcy Court, all
distributions to holders of Allowed Claims as of the applicable Distribution
Date shall be made on or as soon as practicable after the applicable
Distribution Date. Distributions on account of Claims that first become Allowed
Claims after the applicable Distribution Date shall be made pursuant to Section
9.3 of the Plan. The Debtors shall have the right, in their discretion, to
accelerate any Distribution Date occurring after the Effective Date if the facts
and circumstances so warrant.
8.2 Distributions in Respect of Class 5 General Unsecured Claims;
Creditor Trust. Distributions of cash to holders of Allowed Claims in Class 5 on
account of such Claims will be
made from the Creditor Trust on the dates and in accordance with procedures
specified in the Creditor Trust Agreement. In determining distributions prior to
the final allowance or disallowance of all Class 5 Claims, the Liquidating
Trustee shall reserve funds as if all Claims that have not been finally Allowed
or disallowed will ultimately be Allowed in their Face Amount.
8.3 Interest on Claims. Unless otherwise specifically provided for in
the Plan, the Confirmation Order or as part of any Adequate Protection Claims,
or required by applicable bankruptcy law, post Petition Date interest shall not
accrue or be paid on Claims, and no holder of a Claim shall be entitled to
interest accruing on or after the Petition Date on any Claim. Interest shall not
accrue or be paid upon any Disputed Claim in respect of the period from the
Petition Date to the date a final distribution is made thereon if and after such
Disputed Claim becomes an Allowed Claim.
8.4 Designation; Distributions by Disbursing Agent in Respect of Claims
in Classes Other Than Class 5.
(a) The Reorganized Debtors may, in their sole discretion,
designate the Person to serve as the Disbursing Agent under the Plan with
respect to Claims in Classes other than Class 5, and shall file a written
notice of such designation at least five (5) days before the Confirmation
Hearing.
(b) Unless otherwise provided herein, the Disbursing Agent shall
make all distributions required to be made on the respective Distribution
Date under the Plan.
(c) If the Disbursing Agent is an independent third party
designated by the Reorganized Debtors to serve in such capacity, such
Disbursing Agent shall receive, without further Bankruptcy Court approval,
reasonable compensation for distribution services rendered pursuant to the
Plan and reimbursement of reasonable out of pocket expenses incurred in
connection with such services from the Reorganized Debtors on terms
acceptable to the Reorganized Debtors. No Disbursing Agent shall be
required to give any bond or surety or other security for the performance
of its duties unless otherwise ordered by the Bankruptcy Court.
8.5 Means of Cash Payment. Cash payments made pursuant to the Plan shall
be in United States dollars, by the means agreed to by the payor and the payee,
including by check or wire transfer or, in the absence of an agreement, such
commercially reasonable manner as the payor shall determine in its sole
discretion.
For purposes of effectuating distributions under the Plan, any claim
asserted in foreign currency shall be converted to United States dollars
pursuant to the published exchange rate in effect on the Petition Date.
8.6 Intentionally Omitted.
8.7 Calculation of Distribution Amounts of New Amcast Common Stock.
The Amended and Restated Certificate of Incorporation of Reorganized
Amcast (the "Amended Certificate") will provide that, as of the Effective Date,
Reorganized Amcast will be authorized to issue 1,000 shares of New Amcast Common
Stock, par value $.01 per share. Reorganized Amcast will issue 1,000 shares of
New Amcast Common Stock to holders of Claims in Class 2, which will represent
100% of the outstanding common stock of Reorganized Amcast. In addition to the
New Amcast Common Stock to be issued pursuant to the Plan, Reorganized Amcast
also will be authorized to issue additional shares of New Amcast Common Stock
from time to time following the Effective Date, under the provisions of the
Amended Certificate, the Amended By-Laws of Reorganized Amcast (the "Amended
By-Laws") and applicable law.
8.8 Delivery of Distributions to Holders of Claims in Classes Other Than
Class 5. Distributions to holders of Allowed Claims in Classes other than Class
5 shall be made by the Disbursing Agent: (a) at the addresses set forth on the
Proofs of Claim filed by such holders (or at the last known addresses of such
holders if no Proof of Claim is filed or if the Debtors have been notified of a
change of address), (b) at the addresses set forth in any written notices of
address changes delivered to the Disbursing Agent after the date of filing of
any related Proof of Claim, (c) at the addresses reflected in the Schedules if
no Proof of Claim has been filed and the Disbursing Agent has not received a
written notice of a change of address, and (d) in the case of a Prepetition
Secured Lender Claim, to the Prepetition Secured Lender Agent. Distributions on
account of Prepetition Secured Lender Claims shall be deemed complete upon
delivery of such distributions to the Prepetition Secured Lender Agent. If any
holder's distribution is returned as undeliverable, no further distributions to
such holder shall be made unless and until the Disbursing Agent is notified of
such holder's then current address, at which time all missed distributions shall
be made to such holder without interest. Unless otherwise agreed between the
Reorganized Debtors and the Disbursing Agent, amounts in respect of
undeliverable distributions made by the Disbursing Agent shall be returned to
the Reorganized Debtors until such distributions are claimed. All claims for
undeliverable distributions must be made on or before the second (2nd)
anniversary of the Distribution Date, after which date all unclaimed property
shall revert to the Reorganized Debtors free of any restrictions thereon and the
claims of any holder or successor to such holder with respect to such property
shall be discharged and forever barred, notwithstanding any federal or state
escheat laws to the contrary. In the event of a timely claim for an unclaimed
distribution, the Reorganized Debtors shall deliver the applicable unclaimed
property to the Disbursing Agent for distribution pursuant to the Plan. Nothing
contained in the Plan shall require any Debtor, any Reorganized Debtor, any
Disbursing Agent or the Prepetition Secured Lender Agent to attempt to locate
any holder of an Allowed Claim.
8.9 Application of Distribution Record Date for Holders of Prepetition
Secured Lender Secured Claims. At the close of business on the applicable
Distribution Record Date, the register maintained by the Prepetition Secured
Lender Agent shall be closed and there shall be no further changes in the listed
holders of the Prepetition Secured Lender Claims. The Reorganized Debtors, the
Disbursing Agent, the Prepetition Secured Lender Agent, and each of their
respective agents, successors, and assigns shall have no obligation to recognize
any transfer of Prepetition Secured Lender Claims occurring after the
Distribution Record Date and shall be entitled instead to recognize and deal for
all purposes hereunder with only those record holders
stated on the register as of the close of business on the Distribution Record
Date irrespective of the number of distributions to be made under the Plan to
such Persons or the date of such distributions.
8.10 Withholding and Reporting Requirements. In connection with the Plan
and all distributions hereunder, the Disbursing Agent shall, to the extent
applicable, comply with all tax withholding and reporting requirements imposed
by any federal, state, provincial, local, or foreign taxing authority, and all
distributions hereunder shall be subject to any such withholding and reporting
requirements. The Disbursing Agent shall be authorized to take any and all
actions that may be necessary or appropriate to comply with such withholding and
reporting requirements. Notwithstanding any other provision of the Plan, (a)
each holder of an Allowed Claim that is to receive a distribution pursuant to
the Plan shall have sole and exclusive responsibility for the satisfaction and
payment of any tax obligations imposed by any governmental unit, including
income, withholding, and other tax obligations, on account of such distribution,
and (b) each holder of an Allowed Claim agrees to provide the Disbursing Agent
with such information (e.g., taxpayer identification number) as the Disbursing
Agent deems appropriate to fulfill its information reporting and withholding
obligations.
8.11 Setoffs. The Reorganized Debtors may, but shall not be required to,
set off against any Claim, and the payments or other distributions to be made
pursuant to the Plan in respect of such Claim, claims of any nature whatsoever
that the Debtors or the Reorganized Debtors may have against the holder of such
Claim; provided, however, that neither the failure to do so nor the allowance of
any Claim hereunder shall constitute a waiver or release by the Reorganized
Debtors of any such claim that the Debtors or the Reorganized Debtors may have
against such holder.
8.12 Prepayment. Except as otherwise provided in the Plan, any ancillary
documents entered into in connection herewith, or the Confirmation Order, the
Debtors shall have the right to prepay, without penalty, all or any portion of
an Allowed Claim at any time; provided, however, that any such prepayment shall
not be violative of, or otherwise prejudice, the relative priorities and
parities among the Classes of Claims.
8.13 Intentionally Omitted.
8.14 Allocation of Distributions. All distributions received under the
Plan by holders of Claims shall be deemed to be allocated first to the principal
amount of such Claim as determined for United States federal income tax purposes
and then to accrued interest, if any, with respect to such Claim.
ARTICLE IX
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT, AND UNLIQUIDATED CLAIMS AND
DISTRIBUTIONS WITH RESPECT THERETO
9.1 Prosecution of Objections to Claims.
(a) Objections to Claims. The Debtors and Reorganized Debtors will
have the primary responsibility for the claims administration process,
including claims objections. All objections to Claims must be filed with
the Bankruptcy Court by the Claims Objection Deadline and promptly served
on the holders of such Claims. If an objection has not been filed to a
Proof of Claim or a scheduled Claim by the Claims Objection Deadline, and
the Claim is not otherwise disputed pursuant to the terms of the Plan, the
Claim to which the Proof of Claim or scheduled Claim relates shall be
treated as an Allowed Claim if such Claim has not been allowed earlier.
The Debtors may, at any time, request that the Bankruptcy Court estimate
any contingent or unliquidated Claim pursuant to Section 502(c) of the
Bankruptcy Code, regardless of whether any such Debtor has previously
objected to such Claim or whether the Bankruptcy Court has ruled on any
such objection, and the Bankruptcy Court shall retain jurisdiction to
estimate any Claim at any time during litigation concerning any objection
to any Claim, including during the pendency of any appeal relating to any
such objection. In the event the Bankruptcy Court so estimates any
contingent or unliquidated Claim, that estimated amount shall constitute
either the Allowed amount of such Claim or a maximum limitation on such
Claim, as determined by the Bankruptcy Court. If the estimated amount
constitutes a maximum limitation on such Claim, the Debtors or Liquidating
Trustee, as applicable, may elect to pursue any supplemental proceedings
to object to any ultimate payment on such Claim. All of the aforementioned
Claims objection, estimation, and resolution procedures are cumulative and
are not necessarily exclusive of one another. Claims may be estimated and
thereafter resolved by any permitted mechanisms.
(b) Authority to Prosecute Objections. After the Effective Date,
only the Reorganized Debtors and the Liquidating Trustee shall have the
authority to file objections to Claims and to settle, compromise,
withdraw, or litigate to judgment objections to Claims, including Claims
for reclamation under Section 546(c) of the Bankruptcy Code. The
Liquidating Trustee may take such actions only with respect to Class 5
Claims or any Claim that could reasonably be expected to have an impact on
the pool of Class 5 Claims. The Reorganized Debtors may settle or
compromise any Disputed Claim without approval of the Bankruptcy Court;
provided, however, that with respect to Class 5 General Unsecured Claims
or any Claims that could reasonably be expected to have an impact on the
pool of Class 5 Claims, the Liquidating Trustee shall be provided notice
and an opportunity to object to such settlement or compromise.
9.2 Treatment of Disputed Claims.
Notwithstanding any other provisions of the Plan, no payments or
distributions shall be made on account of a Disputed Claim or any portion
thereof until such Claim becomes an Allowed Claim.
9.3 Distributions on Account of Disputed Claims Once They are Allowed.
The Disbursing Agent shall, on the applicable Distribution Dates, make
distributions on account of any Disputed Claim that has become an Allowed Claim.
Such distributions shall be made pursuant to the provisions of the Plan
governing the applicable Class. Such distributions shall be based upon the
cumulative distributions that would have been made to the holder of such Claim
under the Plan if the Disputed Claim had been an Allowed Claim on the Effective
Date in the amount ultimately Allowed.
ARTICLE X
CONDITIONS PRECEDENT TO AND CONSUMMATION OF THE PLAN
10.1 Conditions to Effective Date. The following conditions precedent
must be satisfied or waived on or prior to the Effective Date:
(a) the Confirmation Order shall have been entered, and shall,
among other things:
(i) be reasonably acceptable to the DIP Facility Agent, the
Pre Petition Secured Lender Agent and the Creditors' Committee;
(ii) provide that the Debtors and the Reorganized Debtors are
authorized and directed to take all actions necessary or appropriate
to enter into, implement, and consummate the contracts, instruments,
releases, leases, indentures, and other agreements or documents
created in connection with the Plan;
(iii) authorize the issuance of the New Senior Notes and the
New Amcast Common Stock; and
(iv) provide that notwithstanding Bankruptcy Rule 3020(e),
the Confirmation Order shall be immediately effective, subject to
the terms and conditions of the Plan.
(b) the Confirmation Order shall not be stayed, vacated, or
reversed and shall become a Final Order;
(c) the Certificates or Articles of Incorporation of the
Reorganized Debtors, the Code of Regulations of the Reorganized Debtors,
the Exit Financing, the New Senior Notes and any and all related documents
agreements and instruments shall, to the extent any of such documents
contemplates execution by one or more persons, have been executed and
delivered by the respective parties thereto, and all conditions
precedent to the effectiveness of each such document shall have been
satisfied or waived;
(d) the Reorganized Debtors shall have arranged for and have a
binding commitment for credit availability under the Exit Facility in
amount, form, and substance acceptable to the Debtors and Prepetition
Secured Lender Agent;
(e) the Creditor Trust shall have been established and the
Creditor Trust Assets shall have been transferred to the Creditor Trust.
(f) all material authorizations, consents, and regulatory
approvals required, if any, in connection with consummation of the Plan
shall have been obtained; and
(g) all material actions, documents, and agreements necessary to
implement the Plan shall have been effected or executed.
ARTICLE XI
RETENTION OF JURISDICTION
11.1 Scope of Retention of Jurisdiction. Under Sections 105(a) and 1142
of the Bankruptcy Code, and notwithstanding entry of the Confirmation Order and
occurrence of the Effective Date, and except as otherwise ordered by the
Bankruptcy Court, the Bankruptcy Court shall retain exclusive jurisdiction over
all matters arising out of, and related to, the Chapter 11 Case and the Plan to
the fullest extent permitted by law, including, among other things, jurisdiction
to:
(a) allow, disallow, determine, liquidate, classify, estimate, or
establish the priority or secured or unsecured status of any Claim or
Interest not otherwise Allowed under the Plan (other than personal injury
or wrongful death Claims, unless agreed by the holder), including the
resolution of any request for payment of any Administrative Claim and the
resolution of any objections to the allowance or priority of Claims or
Interests;
(b) hear and determine all applications for compensation and
reimbursement of expenses of Professionals under the Plan or under
Sections 327, 328, 330, 331, 503(b), 1103, and 1129(a)(4) of the
Bankruptcy Code; provided, however, that from and after the Effective
Date, the payment of the fees and expenses of the retained professionals
of the Reorganized Debtors and the Creditor Trust shall be made in the
ordinary course of business and shall not be subject to the approval of
the Bankruptcy Court;
(c) hear and determine all matters with respect to the assumption
or rejection of any executory contract or unexpired lease to which a
Debtor is a party or with respect to which a Debtor may be liable,
including, if necessary, the nature or amount of any required Cure or the
liquidation or allowance of any Claims arising therefrom;
(d) effectuate performance of and payments under the provisions of
the Plan;
(e) hear and determine any and all adversary proceedings, motions,
applications, and contested or litigated matters arising out of, under, or
related to, the Chapter 11 Case, the Litigation Rights or the Creditor
Trust Causes of Action;
(f) enter such orders as may be necessary or appropriate to
execute, implement, or consummate the provisions of the Plan and all
contracts, instruments, releases, and other agreements or documents
created in connection with the Plan, the Disclosure Statement, or the
Confirmation Order;
(g) hear and determine disputes arising in connection with the
interpretation, implementation, consummation, or enforcement of the Plan,
including disputes arising under agreements, documents, or instruments
executed in connection with the Plan, provided, however, that any dispute
arising under or in connection with the Exit Facility or the New Senior
Notes shall be determined in accordance with the governing law designated
by the applicable document;
(h) consider any modifications of the Plan, cure any defect or
omission, or reconcile any inconsistency in any order of the Bankruptcy
Court, including, without limitation, the Confirmation Order;
(i) issue injunctions, enter and implement other orders, or take
such other actions as may be necessary or appropriate to restrain
interference by any Person with the implementation, consummation, or
enforcement of the Plan or the Confirmation Order;
(j) enter and implement such orders as may be necessary or
appropriate if the Confirmation Order is for any reason reversed, stayed,
revoked, modified, or vacated;
(k) hear and determine any matters arising in connection with or
relating to the Plan, the Plan Supplement, the Disclosure Statement, the
Confirmation Order, or any contract, instrument, release, or other
agreement or document created in connection with the Plan, the Plan
Supplement, the Disclosure Statement, or the Confirmation Order;
(l) enforce all orders, judgments, injunctions, releases,
exculpations, Bankruptcy Rule 2004 subpoenas, indemnifications, and
rulings entered in connection with the Chapter 11 Case;
(m) except as otherwise limited herein, recover all assets of the
Debtors and property of the Estates, wherever located;
(n) hear and determine matters concerning state, local, and
federal taxes in accordance with Sections 346, 505, and 1146 of the
Bankruptcy Code;
(o) hear and determine all disputes involving the existence,
nature, or scope of the Debtors' discharge;
(p) hear and determine such other matters as may be provided in
the Confirmation Order or as may be authorized under, or not inconsistent
with, provisions of the Bankruptcy Code; and
(q) enter a final decree closing the Chapter 11 Case.
11.2 Failure of the Bankruptcy Court to Exercise Jurisdiction. If the
Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction
or is otherwise without jurisdiction over any matter arising in, arising under,
or related to the Chapter 11 Case, including the matters set forth in Section
11.1 of the Plan, the provisions of this Article XI shall have no effect upon
and shall not control, prohibit, or limit the exercise of any other court having
jurisdiction with respect to such matter.
11.3 Preservation of Jurisdiction in Certain Non-Bankruptcy Forums.
(a) Nothing in this Plan shall be construed as divesting a court
or administrative body of its jurisdiction to adjudicate issues within its
jurisdiction under environmental laws except that the Bankruptcy Court
shall retain exclusive jurisdiction over the allowance or disallowance of
Claims.
(b) Nothing in this Plan shall be construed as divesting the
exclusive jurisdiction of the National Labor Relations Board to adjudicate
and liquidate unfair labor practice claims.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Professional Fee Claims; Expense Reimbursements.
(a) All final requests for payment of Professional Fee Claims
pursuant to Sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy
Code and substantial contribution claims under Section 503(b)(3), (4), or
(5) of the Bankruptcy Code must be filed and served on the Reorganized
Debtors, their counsel, and other necessary parties in interest no later
than sixty (60) days after the Effective Date, unless otherwise ordered by
the Bankruptcy Court. Objections to such requests for payment must be
filed and served on the Reorganized Debtors, their counsel, and the
requesting Professional or other Person no later than twenty (20) days (or
such longer period as may be allowed by order of the Bankruptcy Court)
after the date on which the applicable request for payment was served.
Subject to allowance of final fee applications, the Debtors shall, on and
after the Effective Date, pay professional fees incurred for the period
prior to the Effective Date in accordance with such procedures as may be
set forth in any Order establishing administrative procedures for interim
compensation and reimbursement of expenses of professionals as may be
entered by the Bankruptcy Court.
(b) Each Reorganized Debtor may, without application to or
approval by the Bankruptcy Court, pay reasonable professional fees and
expenses in connection with services rendered to it after the Effective
Date.
12.2 Administrative Claims. All requests for payment of an Administrative
Claim (other than as set forth in Sections 4.1(a) and 12.1 and this Section 12.2
of the Plan) must be filed with the Bankruptcy Court and served on counsel for
the Debtors no later than forty five (45) days after the Effective Date. Unless
the Debtors or the Liquidating Trustee object to an Administrative Claim within
sixty (60) days after receipt, such Administrative Claim shall be deemed Allowed
in the amount requested. In the event that the Debtors or the Liquidating
Trustee object to an Administrative Claim, the Bankruptcy Court shall determine
the Allowed amount of such Administrative Claim. Notwithstanding the foregoing,
no request for payment of an Administrative Claim need be filed with respect to
Administrative Trade Claims which are paid or payable by a Debtor in the
ordinary course of business.
12.3 Payment of Statutory Fees. All fees payable pursuant to Section 1930
of Title 28 of the United States Code, as determined by the Bankruptcy Court at
the Confirmation Hearing, shall be paid on or before the Effective Date. All
such fees that arise after the Effective Date shall be paid by the Reorganized
Debtors. The obligation of each of the Debtors to pay quarterly fees to the
Office of the United States Trustee pursuant to Section 1930 of Title 28 of the
United States Code shall continue until such time as the particular Chapter 11
case is closed, dismissed or converted.
12.4 Modifications and Amendments. The Debtors may alter, amend, or
modify the Plan under Section 1127(a) of the Bankruptcy Code at any time prior
to the Confirmation Date upon notice and an opportunity to object to the
Creditors' Committee and the Prepetition Secured Lenders. After the Confirmation
Date and prior to substantial consummation of the Plan, as defined in Section
1101(2) of the Bankruptcy Code, the Debtors may, under Section 1127(b) of the
Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any
defect or omission or reconcile any inconsistencies in the Plan or the
Confirmation Order; provided, however, that prior notice of such proceedings
shall be served in accordance with the Bankruptcy Rules or order of the
Bankruptcy Court.
12.5 Severability of Plan Provisions. If, prior to Confirmation, any term
or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or
unenforceable, the Bankruptcy Court, at the request of any Debtor, shall have
the power to alter or interpret such term or provision to make it valid or
enforceable to the maximum extent practicable, consistent with the original
purpose of the term or provision held to be invalid, void, or unenforceable, and
such term or provision shall then be applicable as altered or interpreted.
Notwithstanding any such holding, alteration, or interpretation, the remainder
of the terms and provisions of the Plan shall remain in full force and effect
and shall in no way be affected, impaired, or invalidated by such holding,
alteration, or interpretation. The Confirmation Order shall constitute a
judicial determination and shall provide that each term and provision of the
Plan, as it may have been altered or interpreted in accordance with the
foregoing, is valid and enforceable pursuant to its terms.
12.6 Successors and Assigns and Binding Effect. 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, any heir, executor, administrator, personal
representative, successor, or assign of such Person, including, but not limited
to, the Reorganized Debtors and all other parties in interest in the Chapter 11
Case.
12.7 Compromises and Settlements. From and after the Effective Date, the
Reorganized Debtors may compromise and settle various Claims against them and/or
Litigation Rights and other claims that they may have against other Persons
without any further approval by the Bankruptcy Court, after notice and an
opportunity to object has been provided to the Creditor Trust with respect to
the compromise or settlement of Class 5 Claims, or any Claim that could
reasonably be expected to impact the pool of Class 5 Claims. From and after the
Effective Date, the Creditor Trust and the Liquidating Trustee may compromise or
settle the Creditor Trust Causes of Action without approval of the Bankruptcy
Court. Until the Effective Date, the Debtors expressly reserve the right to
compromise and settle (subject to the approval of the Bankruptcy Court) Claims
against them and Litigation Rights or other claims that they may have against
other Persons.
12.8 Releases and Satisfaction of Subordination Rights. All Claims
against the Debtors and all rights and claims between or among the holders of
Claims relating in any manner whatsoever to any claimed subordination rights
shall be deemed satisfied by the distributions under, described in, contemplated
by, and/or implemented in Sections 4.1, 4.2, and/or 4.3 of the Plan.
Distributions under, described in, contemplated by, and/or implemented by the
Plan to the various Classes of Claims hereunder shall not be subject to levy,
garnishment, attachment, or like legal process by any holder of a Claim by
reason of any claimed subordination rights or otherwise, so that each holder of
a Claim shall have and receive the benefit of the distributions in the manner
set forth in the Plan.
12.9 Releases and Related Matters.
(a) Releases by Debtors. As of the Effective Date, for good and
valuable consideration and in return for the compromises embodied in the
Plan, the receipt and adequacy of which are hereby confirmed, the Debtors,
the Reorganized Debtors and any Person seeking to exercise the rights of
the Debtors' Estate, including, without limitation, any successor to the
Debtors or any estate representative appointed or selected pursuant to
Section 1123(b)(3) of the Bankruptcy Code, shall be deemed to forever
release, waive, and discharge all claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action (including claims or
causes of action arising under Chapter 5 of the Bankruptcy Code), and
liabilities whatsoever in connection with or related to the debtors, the
Chapter 11 Case, or the Plan (other than the rights of the Debtors and the
Reorganized Debtors to enforce the Plan and the contracts, instruments,
releases, indentures, and other agreements or documents entered into
and/or delivered thereunder), whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or
unforeseen, then existing or thereafter arising, in law, equity, or
otherwise, that are based in whole or part on any act, omission,
transaction, event, or other occurrence arising or occurring on or prior
to the Effective Date in any way relating to the Debtors, the Reorganized
Debtors, the
Chapter 11 Case, or the Plan, and that may be asserted by or on behalf of
the Debtors, the Estates, or the Reorganized Debtors against (i) any of
the other Debtors and the Debtors' non Debtor subsidiaries, (ii) the
Prepetition Secured Lenders, the Prepetition Secured Lender Agent, the DIP
Facility Agent, the DIP Facility Lenders, and the Creditors Committee (but
not its members in their individual capacities), (iii) any of the current
and former directors and officers (except as limited hereinbelow), and
advisors, attorneys, and other professionals retained by the Debtors, the
Debtors' subsidiaries, the Prepetition Secured Lenders, the Prepetition
Secured Lender Agent the DIP Facility Agent, the DIP Facility Lenders, and
the Creditors Committee (but not its members in their individual
capacities) serving immediately prior to the Effective Date, and (iv)
those of Debtors' directors and officers designated on Exhibit C, but
specifically excluding any Person identified in clauses (i) through (iv)
above who has, on or before the Effective Date, asserted any Claim (other
than a Proof of Claim as to which the Debtors have not made an objection
or otherwise disputed herein on or before the applicable Claims Objection
Deadline) or initiated any suit, action or similar proceeding against the
Debtors that has not been waived by such Person in its entirety on or
prior to the Effective Date. Notwithstanding any provision in the Plan to
the contrary, none of the Debtors' current and former directors and
officers and none of the directors and officers designated on Exhibit C
shall be released from any liability they may have with respect to the
Creditor Trust Causes of Action provided that any action(s) to recover
from such director or officer is commenced on or before December 31, 2005.
(b) Releases by Holders of Claims. As of the Effective Date, for
good and valuable consideration and in return for the compromises embodied
in the Plan, the receipt and adequacy of which are hereby confirmed, each
holder of a Claim that affirmatively votes in favor of the Plan shall be
deemed to forever release, waive, and discharge all claims, obligations,
suits, judgments, damages, demands, debts, rights, causes of action, and
liabilities whatsoever against (i) the Debtors' non Debtor subsidiaries,
if any, (ii) the Prepetition Secured Lenders, the Prepetition Secured
Lender Agent, the DIP Facility Agent, the DIP Facility Lenders, the
Creditors Committee (but not its members in their individual capacities),
and their respective present agents or professionals, and (iii) any of the
current and former directors, officers, and employees of the Debtors
serving immediately prior to the Effective Date, those of Debtors'
directors, officers and employees designated on Exhibit C, and any of the
Debtors' present agents or professionals (including any professionals
retained by the Debtors) (the Persons identified in clauses (i) through
(iii) collectively, the "Claimholder Releasees") in connection with or
related to the Debtors, the Chapter 11 Case, or the Plan (other than the
rights under the Plan and the contracts, instruments, releases,
indentures, and other agreements or documents entered into and/or
delivered thereunder), whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or
unforeseen, then existing or thereunder arising, in law, equity, or
otherwise, that are based in whole or part on any act, omission,
transaction, event, or other occurrence arising or occurring on or prior
to the Effective Date in any way relating to the Debtors or the
Reorganized Debtors, the Chapter 11 Case, or the Plan; provided, however,
that nothing in this Section 12.9(b) or in this Plan shall release any
Person (other than the Debtors) from any contractual
obligation owed to the holder of a Claim, including without limitation,
obligations under promissory notes, guarantees, or similar instruments,
whether related to the Debtors or otherwise; provided, however, that
nothing herein shall limit or release any claims or rights of the Creditor
Trust with respect to the Creditor Trust Causes of Action or claims or
causes of action related to the Creditor Trust Assets.
Each of the Claimholder Releasees shall be deemed to forever release,
waive, and discharge any claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action, and liabilities whatsoever arising or
occurring on or prior to the Effective Date in any way relating to the Debtors
or the Reorganized Debtors, the Chapter 11 Case, or the Plan, against each
holder of a Claim that affirmatively votes in favor of the Plan.
12.10 Discharge of the Debtors.
(a) Except as otherwise provided herein or in the Confirmation
Order, all consideration distributed under the Plan shall be in exchange
for, and in complete satisfaction, settlement, discharge, and release of,
all Claims of any nature whatsoever against the Debtors or any of their
assets or properties and, regardless of whether any property shall have
been abandoned by order of the Bankruptcy Court, retained, or distributed
pursuant to the Plan on account of such Claims. Upon the Effective Date,
the Debtors, and each of them, shall (i) be deemed discharged and released
under Section 1141(d)(1)(A) of the Bankruptcy Code from any and all
Claims, including, but not limited to, demands and liabilities that arose
before the Effective Date, and all debts of the kind specified in Section
502 of the Bankruptcy Code, whether or not (A) a Proof of Claim based upon
such debt is filed or deemed filed under Section 501 of the Bankruptcy
Code, (B) a Claim based upon such debt is Allowed under Section 502 of the
Bankruptcy Code, or (C) the holder of a Claim based upon such debt
accepted the Plan; and (ii) terminate all Interests.
(b) As of the Effective Date, except as provided in the Plan or in
the Confirmation Order, all Persons shall be precluded from asserting
against the Debtors or the Reorganized Debtors, any other or further
Claims, debts, rights, causes of action, liabilities, or equity interests
relating to the Debtors based upon any act, omission, transaction, or
other activity of any nature that occurred prior to the Effective Date. In
accordance with the foregoing, except as provided in the Plan or the
Confirmation Order, the Confirmation Order shall be a judicial
determination of discharge of all such Claims and other debts and
liabilities against the Debtors and termination of all Interests, pursuant
to Sections 524 and 1141 of the Bankruptcy Code, and such discharge shall
void any judgment obtained against the Debtors at any time, to the extent
that such judgment relates to a discharged Claim or terminated Interest.
(c) Nothing in this Section 12.10 shall release, discharge, or
preclude any remedies of the United States Environmental Protection Agency
or any state environmental protection agency that are not within the
definition of "claim" as set forth in Section 101(5) of the Bankruptcy
Code. In addition, nothing in this Plan shall release, discharge, enjoin
or preclude any Claim of a governmental unit under environmental law that
has not arisen as of the Effective Date.
(d) The discharge of the Debtors pursuant to the Plan is not
intended to limit in any way the Debtors' insurance coverage or to deprive
any third party of any rights to such coverage that may otherwise exist.
12.11 Injunction.
(a) Except as provided in the Plan or in the Confirmation Order,
as of the Effective Date, all Persons that have held, currently hold, may
hold, or allege that they hold, a Claim or other debt or liability that is
discharged or an Interest or other right of an equity security holder that
is terminated pursuant to the terms of the Plan, are permanently enjoined
from taking any of the following actions against the Debtors, the
Reorganized Debtors, or their property on account of any such discharged
Claims, debts, or liabilities or terminated Interests or rights, (i)
commencing or continuing, in any manner or in any place, any action or
other proceeding; (ii) enforcing, attaching, collecting, or recovering in
any manner any judgment, award, decree, or order; (iii) creating,
perfecting, or enforcing any Lien or encumbrance; (iv) asserting a setoff,
right of subrogation, or recoupment of any kind against any debt,
liability, or obligation due to the Debtors or the Reorganized Debtors; or
(v) commencing or continuing any action, in each such case in any manner,
in any place, or against any Person that does not comply with or is
inconsistent with the provisions of the Plan.
(b) As of the Effective Date, except with respect to the
Liquidating Trustee with regard to the Creditor Trust Causes of Action,
all Persons that have held, currently hold, or may hold, a Claim,
obligation, suit, judgment, damage, demand, debt, right, cause of action,
or liability that is released pursuant to Sections 12.8, 12.9, or 12.10 of
the Plan are permanently enjoined from taking any of the following actions
on account of such released Claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action, or liabilities or
terminated Interests or rights, (i) commencing or continuing, in any
manner or in any place, any action or other proceeding; (ii) enforcing,
attaching, collecting, or recovering in any manner any judgment, award,
decree, or order; (iii) creating, perfecting, or enforcing any Lien or
encumbrance; (iv) asserting a setoff against any debt, liability, or
obligation due to any released Person; or (v) commencing or continuing any
action, in any manner, in any place, or against any Person that does not
comply with or is inconsistent with the provisions of the Plan.
(c) Without limiting the effect of the foregoing upon any Person,
by accepting distributions pursuant to the Plan, each holder of an Allowed
Claim receiving distributions pursuant to the Plan shall be deemed to have
specifically consented to the injunctions set forth in this Section 12.11.
(d) Nothing in the Plan or the Confirmation Order shall release,
nullify, enjoin, or preclude the enforcement of any liability to a
governmental unit under environmental statutes or regulations that any
entity would be subject to as the owner or operator of property after the
Effective Date.
(e) Nothing in the Plan or the Confirmation Order shall enjoin or
preclude the National Labor Relations Board from hearing and adjudicating
any alleged unfair labor practices, entering judgments or orders with
respect thereto and taking any action to enforce such judgments or orders,
other than the enforcement of money judgments.
12.12 Exculpation and Limitation of Liability.
(a) None of the Debtors, the Reorganized Debtors or their
respective subsidiaries, the Creditors Committee, the Prepetition Secured
Lenders, the Prepetition Secured Lender Agent, the DIP Facility Agent, the
DIP Facility Lenders, or any of their respective present or former
members, officers, directors, employees, advisors, professionals and
agents, shall have or incur any liability to any holder of a Claim or an
Interest, or any other party in interest, or any of their respective
agents, employees, representatives, advisors, attorneys, or affiliates, or
any of their successors or assigns, for any act or omission occurring on
or after the Petition Date in connection with, relating to, or arising out
of, the Chapter 11 Case, the formulation, negotiation, or implementation
of the Plan, the solicitation of acceptances of the Plan, the pursuit of
Confirmation of the Plan, the Confirmation of the Plan, the consummation
of the Plan, or the administration of the Plan or the property to be
distributed under the Plan, except for acts or omissions which are the
result of fraud, gross negligence, or willful misconduct or willful
violation of federal or state securities laws or the Internal Revenue
Code, and in all respects shall be entitled to reasonably rely upon the
advice of counsel with respect to their duties and responsibilities under
the Plan.
(b) Notwithstanding any other provision of the Plan except for
Section 12.21, no holder of a Claim or an Interest, no other party in
interest, none of their respective agents, employees, representatives,
advisors, attorneys, or affiliates, and none of their respective
successors or assigns shall have any right of action against any Debtor,
any Reorganized Debtor, any of its subsidiaries, the Creditors Committee,
the Prepetition Secured Lenders, the Prepetition Secured Lender Agent, the
DIP Facility Agent, the DIP Facility Lenders, or any of their respective
present or former members, officers, directors, employees, advisors,
professionals and agents, for any act or omission occurring on or after
the Petition Date in connection with, relating to, or arising out of, the
Chapter 11 Case, the formulation, negotiation, or implementation of the
Plan, solicitation of acceptances of the Plan, the pursuit of Confirmation
of the Plan, the Confirmation of the Plan, the consummation of the Plan,
or the administration of the Plan or the property to be distributed under
the Plan, except for acts or omissions which are the result of fraud, or
willful misconduct or willful violation of federal or state securities
laws or the Internal Revenue Code.
12.13 Term of Injunctions or Stays. Unless otherwise provided herein or in
the Confirmation Order, all injunctions or stays provided for in the Chapter 11
Case under Sections 105 or 362 of the Bankruptcy Code or otherwise, and extant
on the Confirmation Date (excluding any injunctions or stays contained in the
Plan or the Confirmation Order), shall remain in full force and effect until the
Effective Date.
12.14 Post-Confirmation Conversion/Dismissal. A creditor or party in
interest may bring a motion to convert or dismiss the cases under Section
1112(7) after the Plan is confirmed if there is a default in performing the
Plan. If the Court orders the cases converted after the Plan is confirmed, this
Plan provides that property of the estates that have not been disbursed pursuant
to the Plan will revest in the Chapter 7 estate and that the automatic stay will
be reimposed upon the revested property to the extent that relief from stay was
not previously authorized by the Court during these cases.
12.15 Revocation, Withdrawal, or Non Consummation. The Debtors reserve the
right to revoke or withdraw the Plan at any time prior to the Confirmation Date
and to file subsequent plans of reorganization. The order confirming the Plan
may also be revoked under very limited circumstances by order of the Bankruptcy
Court. The Court may revoke the order if and only if the order of confirmation
was procured by fraud and if a party in interest brings a motion to revoke
confirmation within 180 days after the entry of the order of confirmation. If
the Plan is revoked or withdrawn, or if Confirmation or the Effective Date does
not occur, then (a) the Plan shall be null and void in all respects, (b) any
settlement or compromise embodied in the Plan (including the fixing or limiting
to an amount certain any Claim or Class of Claims), assumption or rejection of
executory contracts or leases effected by the Plan, and any document or
agreement executed pursuant to the Plan shall be deemed null and void, and (c)
nothing contained in the Plan, and no acts taken in preparation for consummation
of the Plan, shall (i) constitute or be deemed to constitute a waiver or release
of any Claims by or against, or any Interests in, any Debtor or any other
Person, (ii) prejudice in any manner the rights of any Debtor or any Person in
any further proceedings involving a Debtor, or (iii) constitute an admission of
any sort by any Debtor or any other Person.
12.16 Plan Supplement. The Plan Supplement shall be filed with the Clerk
of the Bankruptcy Court at least ten (10) days prior to the date of the
commencement of the Confirmation Hearing. Upon such filing, all documents
included in the Plan Supplement may be inspected in the office of the Clerk of
the Bankruptcy Court during normal business hours. Holders of Claims or
Interests may obtain a copy of any document included in the Plan Supplement upon
written request to the Debtors in accordance with this Section 12.16 of the
Plan.
12.17 Notices. Any notice, request, or demand required or permitted to be
made or provided to or upon a Debtor or a Reorganized Debtor under the Plan
shall be (a) in writing, (b) served by (i) certified mail, return receipt
requested, (ii) hand delivery, (iii) overnight delivery service, (iv) first
class mail, or (v) facsimile transmission, and (c) deemed to have been duly
given or made when actually delivered or, in the case of notice by facsimile
transmission, when received and telephonically confirmed, addressed as follows:
(A) THE DEBTORS AND THE REORGANIZED DEBTORS.
Amcast Industrial Corporation
Attn: Jeffrey A. McWilliams, V.P. of Administration
7887 Washington Village Drive
Dayton, Ohio 45459
with copies to:
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114 1291
Telephone: (216) 566 5500
Fax: (216) 566 5800
Attn: Alan R. Lepene, Esq.
Jeremy M. Campana, Esq.
-and-
THOMPSON HINE LLP
2000 Courthouse Plaza N.E.
10 West Second Street
Dayton, Ohio 45402
937.443.6600
937.443.6635 (Facsimile)
Attn: Lawrence T. Burick, Esq.
Jennifer L. Maffett, Esq.
Attorneys for Debtors and Debtors-in-Possession
(B) THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS.
MCDONALD HOPKINS CO., LPA
2100 Bank One Center
600 Superior Avenue, East
Cleveland, Ohio 44114-2653
216.348.5400
216.348.5474
Attn: Jean R. Robertson, Esq.
Sean D. Malloy, Esq.
Counsel to the Official Committee of Unsecured Creditors
(C) THE PREPETITION SECURED LENDER AGENT AND DIP FACILITY AGENT.
Haynes & Boone, LLP,
1 Houston Center
1221 McKinney, Suite 2100
Houston, Texas 77010
Facsimile: 713.547.2600
Telephone: 713.547.2000
Attn: Tom A. Howley
Hahn Loeser & Parks LLP
3300 BP Tower
200 Public Square
Cleveland, OH 44114
Facsimile: 216.241.2824
Telephone: 216.621.0150
Attn: Daniel A. DeMarco
Counsel to the Prepetition Secured Lender Agent and DIP
Facility Agent
12.18 Dissolution of Creditors Committee. On the Effective Date, the
Creditors Committee shall dissolve and its members shall be released and
discharged from all duties and obligations arising from or related to the
Chapter 11 Case. The Professionals retained by the Creditors Committee and the
members thereof shall not be entitled to compensation or reimbursement of
expenses for any services rendered after the Effective Date, except as may be
necessary to file final requests for payment pursuant to Section 12.1(a) of the
Plan, and respond to any inquiries or objections and attend hearings on final
fee applications.
12.19 Computation of Time. In computing any period of time prescribed or
allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
12.20 Governing Law. Unless a rule of law or procedure is supplied by
federal law (including the Bankruptcy Code and Bankruptcy Rules), the laws of
(a) the State of Ohio shall govern the construction and implementation of the
Plan and (except as may be provided otherwise in any such agreements, documents,
or instruments) any agreements, documents, and instruments executed and/or
delivered in connection with the Plan and (b) the laws of the state of
incorporation of each Debtor shall govern corporate governance matters with
respect to such Debtor; in each case without giving effect to the principles of
conflicts of law thereof.
12.21 PBGC Claims. Notwithstanding anything in the Plan, no claims or
Claims, obligations, suits, judgments, damages, demands, debts, rights, cause of
action or liabilities whatsoever against any entity other than the Debtors and
the Reorganized Debtors with respect to the Debtors' defined benefit pension
plan covered by title IV of ERISA shall be released, exculpated, discharged,
enjoined or otherwise affected by this Plan.
Dated: July 27, 2005 Amcast Industrial Corporation, on its own
Dayton, Ohio behalf and on behalf of each subsidiary debtor
By: /s/ Jeffrey A. McWilliams
-----------------------------------------
Jeffrey A. McWilliams
V.P. of Administration and Secretary
of the Debtors-in-Possession
COUNSEL:
Alan R. Lepene, Esq.
Jeremy M. Campana, Esq.
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114 1291
Telephone: 216.566.5500
Facsimile: 216.566.5800
alan.lepene@thompsonhine.com
jeremy.campana@thompsonhine.com
-and-
Lawrence T. Burick, Esq.
Jennifer L. Maffett, Esq.
THOMPSON HINE LLP
2000 Courthouse Plaza N.E.
10 West Second Street
Dayton, Ohio 45402
Telephone: 937.443.6600 937.443.6600
Facsimile: 837.443.6635 937.443.6635
larry.burick@thompsonhine.com
jennifer.maffett@thompsonhine.com
Attorneys for Debtors and Debtors-in-Possession