Exhibit 2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- -------------------------------------------------------
IN RE: )
) Chapter 11
OWENS CORNING, et al., )
) Case No. 00-03837
(JKF) )
Debtors )
) Jointly Administered
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AMENDED JOINT PLAN OF REORGANIZATION FOR OWENS CORNING
AND ITS AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION
SAUL EWING LLP SKADDEN, ARPS, SLATE, MEAGHER
Norman L. Pernick (I.D. # 2290) & FLOM LLP
222 Delaware Avenue Ralph Arditi
P.O. Box 1266 D.J. Baker
Wilmington, DE 19899-1266 Four Times Square
(302) 421-6800 New York, NY 10036-6522
(212) 735-3000
Charles O. Monk, II
Irving E. Walker Special Counsel to Debtors
Jay A. Shulman and Debtors-in-Possession
100 South Charles Street
Baltimore, MD 21201-2773
(410) 332-8600
Attorneys for the Debtors and
Debtors-in-Possession
KAYE SCHOLER LLP CAPLIN & DRYSDALE, CHARTERED
Michael J. Crames Elihu Inselbuch
Andrew A. Kress 399 Park Avenue
Edmund M. Emrich New York, NY 10022
425 Park Avenue (212) 319-7125
New York, NY 10022
(212) 836-8000
Peter Van N. Lockwood
Julie W. Davis
YOUNG, CONAWAY, One Thomas Circle, N.W.
STARGATT & TAYLOR LLP Washington, D.C. 20005
James L. Patton, Jr. (I.D. # 2202) (202) 862-5000
The Brandywine Building
1000 West Street, 17th Floor CAMPBELL & LEVINE
P.O. Box 391 Marla Eskin (I.D. # 2989)
Wilmington, DE 19899-0391 Chase Manhattan Center
(302) 571-6600 15th Floor
1201 Market Street
Attorneys for James J. McMonagle, Wilmington, DE 19899
Legal Representative for Future Claimants (302) 426-1900
Dated as of: March 28, 2003
Attorneys for the Official
Committee of Asbestos Claimants
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS, RULES OF INTERPRETATION, COMPUTATION
OF TIME AND GOVERNING LAW 1
A. Scope of Definitions 1
B. Definitions 2
1.1 "$250 Million Notes" 2
1.2 "$130 Million DEM Bearer Bonds" 2
1.3 "$300 Million High Coupon Debentures" 2
1.4 "$400 Million Debentures" 2
1.5 "$550 Million Term Notes" 2
1.6 "1997 Credit Agreement" 2
1.7 "Administrative Claims" 2
1.8 "Affiliate" 3
1.9 "Allowed" 3
1.10 "Amended and Restated Bylaws of Reorganized OCD" 4
1.11 "Amended and Restated Certificate of Incorporation of Reorganized OCD" 4
1.12 "Asbestos Claimants' Committee" 5
1.13 "Asbestos Personal Injury Claims" 5
1.14 "Asbestos Personal Injury Permanent Channeling Injunction" 5
1.15 "Asbestos Personal Injury Trust" 5
1.16 "Asbestos Personal Injury Trust Agreement" 5
1.17 "Asbestos Personal Injury Trust Distribution Procedures" 5
1.18 "Asbestos Personal Injury Trustees" 5
1.19 "Available Cash" 6
1.20 "Avoidance Actions" 6
1.21 "Ballot" 6
1.22 "Ballot Date" 6
1.23 "Bank Holders" 6
1.24 "Bank Holders Action" 6
1.25 "Bank Holders Claims" 6
1.26 "Bankruptcy Code" 6
1.27 "Bankruptcy Court" 6
1.28 "Bankruptcy Rules" 6
1.29 "Board of Directors" 7
1.30 "Bondholders" 7
1.31 "Bondholders Claims" 7
1.32 "Business Day" 7
1.33 "Cash" 7
1.34 "Chapter 11" 7
1.35 "Chapter 11 Cases" 7
1.36 "Claim" 7
1.37 "Claimant Released Parties" 7
1.38 "Claims Objection Deadline" 7
1.39 "Claims Trading Injunction" 7
1.40 "Class" 8
1.41 "Class ___ Final Distribution Percentage" 8
1.42 "Class ___ Initial Distribution Percentage" 8
1.43 "Class 7 Aggregate Amount" 8
1.44 "Class 8 Aggregate Amount" 8
1.45 "Combined Distribution Package" 8
1.46 "Combined Net Distribution Package" 9
1.47 "Commercial Claims" 10
1.48 "Committed Claims Account" 10
1.49 "Committees" 10
1.50 "Confirmation Conditions" 10
1.51 "Confirmation Date" 10
1.52 "Confirmation Hearing" 10
1.53 "Confirmation Order" 10
1.54 "Convenience Claim" 10
1.55 "CSFB" 10
1.56 "Cure" 10
1.57 "Debt" 11
1.58 "Debt Agreements" 11
1.59 "Debtors" 11
1.60 "Debtors-in-Possession" 11
1.61 "Demand" 11
1.62 "DIP Agent" 11
1.63 "DIP Facility" 11
1.64 "DIP Facility Claims" 11
1.65 "DIP Lenders" 11
1.66 "Disallowed Claim" 11
1.67 "Disbursing Agent" 12
1.68 "Disclosure Statement" 12
1.69 "Disclosure Statement Hearing" 12
1.70 "Disputed Claim" 12
1.71 "Disputed Distribution Reserve" 12
1.72 "Distribution Record Date" 12
1.73 "Distributable Shares" 12
1.74 "District Court" 12
1.75 "Effective Date" 12
1.76 "Encumbrance" 12
1.77 "Enjoined Action" 13
1.78 "Environmental Claims" 13
1.79 "EPA" 13
1.80 "Estates" 13
1.81 "Excess Available Cash" 13
1.82 "Excess Litigation Trust Recoveries" 13
1.83 "Excess New OCD Common Stock" 13
1.84 "Excess Senior Notes" 14
1.85 "Excess Senior Notes Amount" 14
1.86 "Existing Fibreboard Insurance Settlement Trust Assets" 14
1.87 "Existing OCD Common Stock" 14
1.88 "Existing OCD Options" 14
1.89 "Existing OCD Preferred Stock" 14
1.90 "Exit Facility" 14
1.91 "Face Amount" 14
1.92 "FB Asbestos Personal Injury Claim" 14
1.93 "FB Asbestos Property Damage Claim" 15
1.94 "FB Asbestos Property Damage Insurance Assets" 15
1.95 "FB Asbestos Property Damage Trust" 16
1.96 "FB Asbestos Property Damage Trust Agreement" 16
1.97 "FB Asbestos Property Damage Trust Distribution Procedures" 16
1.98 "FB Asbestos Property Damage Trustee" 16
1.99 "FB Indirect Asbestos PI Trust Claim" 16
1.100 "FB Indirect Asbestos Property Damage Claim" 17
1.101 "FB Person" 17
1.102 "FB Resolved Asbestos Personal Injury Claim" 17
1.103 "FB Restricted Cash" 18
1.104 "FB Reversions" 18
1.105 "FB Sub-Account" 18
1.106 "FB Sub-Account Settlement Payment" 18
1.107 "Fibreboard" 18
1.108 "Fibreboard Insurance Settlement Trust" 18
1.109 "Filing" 18
1.110 "Final Distribution Date" 18
1.111 "Final Order" 19
1.112 "Future Claimants' Representative" 19
1.113 "General Unsecured Claim" 19
1.114 "Guarantee Settlement Payment" 19
1.115 "Guarantee Settlement Value" 19
1.116 "Hartford Entities" 19
1.117 "Hartford Policies" 20
1.118 "Hartford Settlement Agreement" 21
1.119 "Impaired" 22
1.120 "Indemnification Obligations" 22
1.121 "Initial Distribution Date" 22
1.122 "Insolvent Insurer PD Rights" 22
1.123 "Insolvent Insurer PI Rights" 22
1.124 "Insurance Guarantee Fund PD Rights" 23
1.125 "Insurance Guarantee Fund PI Rights" 23
1.126 "Intercompany Claim" 23
1.127 "Interested Party" 23
1.128 "Interests" 23
1.129 "IPM" 23
1.130 "IRC" 23
1.131 "IRS" 23
1.132 "Litigation Trust" 23
1.133 "Litigation Trust Agreement" 24
1.134 "Litigation Trust Assets" 24
1.135 "Litigation Trust Expenses" 24
1.136 "Litigation Trust Initial Deposit" 24
1.137 "Litigation Trust Recoveries" 24
1.138 "Litigation Trust Reimbursement Obligation" 24
1.139 "Litigation Trustee" 24
1.140 "Management Arrangements" 24
1.141 "Material Rights of Action" 25
1.142 "Net Available Distributable Shares" 25
1.143 "Net Available Senior Notes Amount" 25
1.144 "New OCD Common Stock" 25
1.145 [Intentionally Omitted] 25
1.146 "New OCD Securities" 25
1.147 "Non-Debtor Subsidiaries" 25
1.148 "NSP" 25
1.149 "NSP Agreements" 25
1.150 "Objection Deadline" 25
1.151 "OC" 25
1.152 "OC Asbestos Personal Injury Claim" 25
1.153 "OC Asbestos Personal Injury Liability Insurance Assets" 26
1.154 "OC Asbestos Property Damage Claim" 26
1.155 "OCD" 27
1.156 "OCD Insurance Escrow" 27
1.157 "OCD Interests" 27
1.158 "OCD Restricted Cash" 27
1.159 "OCD Reversions" 27
1.160 "OC Indirect Asbestos PI Trust Claim" 27
1.161 "OC Indirect Asbestos Property Damage Claim" 28
1.162 "OC Person" 29
1.163 "OC Resolved Asbestos Personal Injury Claim" 29
1.164 "OC Sub-Account" 29
1.165 "Other Priority Claims" 29
1.166 "Other Secured Claims" 29
1.167 "Other Secured Tax Claims" 29
1.168 "Person" 30
1.169 "Petition Date" 30
1.170 "Plan" 30
1.171 "Plan Proponents" 30
1.172 "PLR" 30
1.173 "Potential Tax Refunds" 30
1.174 "Pre-petition Bond Indentures" 30
1.175 "Pre-petition Bonds" 30
1.176 "Pre-petition Indenture Trustees" 31
1.177 "Priority Tax Claim" 31
1.178 "Pro Rata" 31
1.179 "Proof of Claim" 31
1.180 "Proposed Asbestos-Related Tax Legislation" 31
1.181 "Protected Party" 31
1.182 "Quarterly Distribution Date" 32
1.183 "Record Date" 32
1.184 "Reference Order" 32
1.185 "Reinstatement" 33
1.186 "Related Persons" 33
1.187 "Released Actions" 33
1.188 "Released Parties" 34
1.189 "Reorganized Debtors" 34
1.190 "Reorganized OCD" 34
1.191 "Reorganized Subsidiary Debtors" 34
1.192 "Resolved Asbestos Personal Injury Claims" 34
1.193 "Restricted Cash" 34
1.194 "Restructuring Transactions" 34
1.195 "Senior Notes" 34
1.196 "Senior Notes Amount" 34
1.197 "SOFAS" 35
1.198 "Subsidiary" 35
1.199 "Subsidiary Debtors" 35
1.200 "Subsidiary Interests" 35
1.201 "TAC" 35
1.202 "Tobacco Causes of Action" 35
1.203 "Unclassified Claims" 36
1.204 "Unimpaired" 36
1.205 "Unpaid FB Resolved Asbestos Personal Injury Claim" 36
1.206 "Unpaid OC Resolved Asbestos Personal Injury Claim" 36
1.207 "Unsecured Creditors' Committee" 36
1.208 "Voting Deadline" 36
1.209 "Voting Procedures" 36
1.210 "Voting Procedures Order" 37
C. Rules of Interpretation 37
D. Computation of Time 37
E. Governing Law 37
ARTICLE II CLASSIFICATION OF CLAIMS AND INTERESTS 37
2.1 Introduction 37
2.2 Classification of Unimpaired Claims 39
2.3 Classification of Impaired Claims and Interests 39
ARTICLE III TREATMENT OF CLAIMS AND INTERESTS 40
3.1 Unclassified Claims 40
3.2 Unimpaired Classes of Claims 41
3.3 Impaired Classes of Claims and Interests 42
3.4 Reservation of Rights Regarding Claims 48
ARTICLE IV ACCEPTANCE OR REJECTION OF THE PLAN 48
4.1 Impaired Classes of Claims and Interests Entitled to Vote 48
4.2 Acceptance by an Impaired Class 48
4.3 Presumed Acceptances by Unimpaired Classes 48
4.4 Classes Deemed to Reject the Plan 49
4.5 Summary of Classes Voting on the Plan 49
4.6 Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code 49
ARTICLE V MEANS FOR IMPLEMENTATION OF THE PLAN 49
5.1 Continued Corporate Existence 49
5.2 Cancellation of Debt and Debt Agreements 49
5.3 Cancellation of OCD Interests 50
5.4 Certificates of Incorporation and Bylaws 50
5.5 Exculpation and Limitation of Liability 50
5.6 Restructuring Transactions 51
5.7 Issuance of New OCD Securities 52
5.8 Litigation Trust 52
5.9 Revesting of Assets 54
5.10 Rights of Action 54
5.11 Effectuating Documents; Further Transactions 55
5.12 Exemption from Certain Transfer Taxes 55
5.13 Releases and Injunction Related to Releases 55
5.14 Permanent Injunctions and Asbestos Personal Injury Permanent
Channeling Injunction 57
5.15 Directors and Officers of Reorganized Debtors 58
5.16 Compensation and Benefit Programs 59
5.17 Continuation of Certain Orders 59
5.18 Exit Facility 59
ARTICLE VI SUBSTANTIVE CONSOLIDATION FOR PURPOSES OF TREATING IMPAIRED CLAIMS AND
PROCESS FOR RESOLUTION OF KEY ISSUES 60
6.1 Substantive Consolidation 60
ARTICLE VII TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 60
7.1 Assumed Contracts and Leases 60
7.2 Payments Related to Assumption of Contracts and Leases 61
7.3 Rejected Contracts and Leases 61
7.4 Rejection Damages Bar Date 62
7.5 Indemnification Obligations 62
7.6 Insurance Policies and Agreements 62
ARTICLE VIII PROVISIONS GOVERNING DISTRIBUTIONS 63
8.1 Distributions for Claims Allowed as of the Effective Date 63
8.2 Interest on Claims 64
8.3 Distributions under the Plan 64
8.4 Record Date for Distributions to Holders of Bank Holders
Claims and Bondholders Claims 64
8.5 Means of Cash Payment 64
8.6 Fractional New OCD Common Stock; Other Distributions 65
8.7 Delivery of Distributions 65
8.8 Surrender of Pre-petition Bonds 66
8.9 Withholding and Reporting Requirements 67
8.10 Setoffs 67
ARTICLE IX PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS AND DISPUTED INTERESTS 67
9.1 Prosecution of Objections to Certain Claims 67
9.2 No Distributions Pending Allowance 68
9.3 Disputed Distribution Reserve 68
9.4 Distributions on Account of Disputed Claims Once They are Allowed 68
ARTICLE X THE ASBESTOS PERSONAL INJURY TRUST 69
10.1 The Asbestos Personal Injury Trust 69
10.2 Appointment of Asbestos Personal Injury Trustees 69
10.3 Transfers of Property to the Asbestos Personal Injury Trust 69
10.4 Assumption of Certain Liabilities by the Asbestos Personal Injury Trust 70
10.5 Certain Property Held in Trust by the Reorganized Debtors
or the Fibreboard Insurance Settlement Trust 71
10.6 Cooperation with Respect to Insurance Matters 71
10.7 Authority of the Debtors 72
ARTICLE XI FB ASBESTOS PROPERTY DAMAGE TRUST 72
11.1 The FB Asbestos Property Damage Trust 72
11.2 Appointment of FB Asbestos Property Damage Trustee 72
11.3 Transfer of Certain Property to the FB Asbestos Property Damage Trust 72
11.4 Assumption of Certain Liabilities by the FB Asbestos Property Damage Trust 73
11.5 Cooperation with Respect to Insurance Matters 73
11.6 Authority of the Debtors 74
ARTICLE XII CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN 74
12.1 Conditions to Confirmation 74
12.2 Conditions to Effective Date 78
12.3 Waiver of Conditions 79
ARTICLE XIII RETENTION OF JURISDICTION 79
13.1 Exclusive Jurisdiction of the Bankruptcy Court and District Court 79
13.2 Continued Reference to the Bankruptcy Court 81
ARTICLE XIV MISCELLANEOUS PROVISIONS 81
14.1 Professional Fee Claims 81
14.2 Administrative Claims Bar Date 82
14.3 Payment of Statutory Fees 82
14.4 Modifications and Amendments 82
14.5 Severability of Plan Provisions 83
14.6 Successors and Assigns 83
14.7 Compromises and Settlements 83
14.8 Corrective Action 83
14.9 Discharge of the Debtors 83
14.10 Special Provisions for Warranty Claims, Distributorship
Indemnification Claims and Product Coupon Claims 84
14.11 Committees and Future Claimants' Representative 85
14.12 Binding Effect 85
14.13 Revocation, Withdrawal, or Non-Consummation 85
14.14 Plan Exhibits 86
14.15 Notices 86
14.16 Term of Injunctions or Stays 88
EXHIBITS
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Exhibit A Form of Amended and Restated Certificate of Incorporation
of Reorganized OCD
Exhibit B Form of Amended and Restated Bylaws of Reorganized OCD
Exhibit C Form of Litigation Trust Agreement
Exhibit D Form of Asbestos Personal Injury Trust Agreement
Exhibit D-1 Form of Asbestos Personal Injury Trust Distribution Procedures
Exhibit E Form of FB Asbestos Property Damage Trust Agreement
Exhibit E-1 Form of FB Asbestos Property Damage Trust Distribution
Procedures
Exhibit F Management Arrangements including Form of Incentive
Compensation Program and List of Participants in Incentive
Compensation Program
SCHEDULES
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Schedule I Schedule of Subsidiary Debtors
Schedule II Schedule of Non-Debtor Subsidiaries
Schedule III Schedule of Persons against Whom Claims are Not Released
under the Plan
Schedule IV Schedule of Executory Contracts and Unexpired Leases
Not Assumed
Schedule V Schedule of Avoidance Actions Commenced by the Debtors
Schedule VI Schedule of Purchasers and Transferees Treated as Protected
Parties
Schedule VII Schedule of Insurance Companies Who Are Protected Parties
Schedule VIII Schedule of FB Persons and OC Persons
Schedule IX Schedule of Interested Parties
Schedule X Schedule of Protected Parties
Schedule XI List of Insurance Policies to Be Rejected to the Extent
Executory Contracts
Schedule XII Combined Distribution Package
Schedule XIII Combined Net Distribution Package
Schedule XIV Schedule of Exclusions from Intercompany Claims
Schedule XV Schedule of Avoidance Actions and Material Rights of Action
Expressly Not Released
Schedule XVI Schedule of Fibreboard Insurance Policies Which Are FB
Asbestos Property Damage Insurance Assets
Schedule XVII Schedule of OCD Insurance Policies Which Are OC Asbestos
Personal Injury Liability Insurance Assets
Schedule XVIII Schedule of FB Sub-Account Settlement Payment
INTRODUCTION
Owens Corning, a Delaware corporation ("OCD"), and those entities
listed on Schedule I hereto (collectively, the "Subsidiary Debtors" and,
together with OCD, the "Debtors"), James J. McMonagle, the Legal Representative
for Future Claimants ("Future Claimants' Representative"), and the Official
Committee of Asbestos Claimants ("Asbestos Claimants' Committee"), hereby
propose the following amended joint plan of reorganization (the "Plan") for the
Debtors in their reorganization cases (the "Chapter 11 Cases") under Chapter 11
of the Bankruptcy Code ("Chapter 11") for the resolution of their creditors'
Claims and Demands and their equity holders' Interests. The Debtors, the Future
Claimants' Representative, and the Asbestos Claimants' Committee (collectively,
"Plan Proponents") are the co-proponents of the Plan within the meaning of
Section 1129 of the Bankruptcy Code.
Certain of OCD's Subsidiaries (including IPM, Vytec Corporation,
Owens-Corning Fibreglas Sweden Inc. and certain foreign entities and joint
ventures) have not commenced cases under Chapter 11 of the Bankruptcy Code
(collectively, the "Non-Debtor Subsidiaries"), and accordingly continue to
operate their businesses in the ordinary course. A list of the Non-Debtor
Subsidiaries is attached hereto as Schedule II. Although IPM and the other
Non-Debtor Subsidiaries have not filed under Chapter 11 at the present time,
one or more of the Non-Debtor Subsidiaries may file for reorganization under
Chapter 11 in the future.
Subject to certain restrictions and requirements set forth in Section
1127 of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 3019 and
Section 14.4 of the Plan, the Plan Proponents reserve the right to alter,
amend, modify, revoke or withdraw the Plan prior to its substantial
consummation.
ARTICLE I
DEFINITIONS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. Scope of Definitions
For purposes of the Plan, all capitalized terms not otherwise defined
shall have the meanings ascribed to them in Article I of the Plan, except as
expressly provided or unless the context clearly requires otherwise. Whenever
the context requires, such meanings shall be equally applicable to both the
singular and plural form of such terms, and the masculine gender shall include
the feminine and the feminine gender shall include the masculine. Any term used
in initially capitalized form in this Plan that is not defined herein but that
is used in the Bankruptcy Code shall have the meaning ascribed to such term in
the Bankruptcy Code.
B. Definitions
1.1 "$250 Million Notes" means the 7% Notes in the aggregate principal
amount of $250 million due March 15, 2009, issued by OCD under an
Indenture, dated as of May 5, 1997, between OCD and The Bank of New
York, as trustee.
1.2 "$130 Million DEM Bearer Bonds" means the 7.25% DEM Bearer Bonds in
the aggregate principal amount of $130 million due December 2, 2000,
issued by OCD pursuant to the Underwriting Agreement, dated as of
November 15, 1985, between OCD, Dresdner Bank AG and the other banks
listed therein, and the Agreement for the Listing, the Trusteeship
and the Paying Agency, dated as of November 15, 1985, between OCD and
Dresdner Bank AG.
1.3 "$300 Million High Coupon Debentures" means two series of debentures
in the aggregate principal amount of $300 million issued by OCD under
an Indenture dated as of May 21, 1992, between OCD and The Bank of
New York, as trustee, consisting of (i) 8.875% Debentures in the
aggregate principal amount of $150 million due June 1, 2002 (the
"8.875% Debentures"), and (ii) 9.375% Debentures in the aggregate
principal amount of $150 million due June 1, 2012 (the "9.375%
Debentures").
1.4 "$400 Million Debentures" means the 7.5% Debentures in the aggregate
principal amount of $400 million due August 1, 2018, issued by OCD
under the Indenture, dated as of May 5, 1997, between OCD and The
Bank of New York, as trustee.
1.5 "$550 Million Term Notes" means two series of notes in the aggregate
principal amount of $550 million issued by OCD under an Indenture,
dated as of May 5, 1997, between OCD and The Bank of New York, as
trustee, consisting of (i) 7.5% Term Notes in the aggregate principal
amount of $300 million due May 1, 2005 (the "First Series"), and (ii)
7.7% Term Notes in the aggregate principal amount of $250 million due
May 1, 2008 (the "Second Series").
1.6 "1997 Credit Agreement" means the Credit Agreement, dated as of June
26, 1997, by and among OCD, the Subsidiary Debtors and Non-Debtor
Subsidiaries named therein, the banks listed in Annex A thereto and
CSFB, as agent, as amended by Amendment No. 1, dated as of February
20, 1998, and Amendment No. 2, dated as of November 30, 1998.
1.7 "Administrative Claims" means claims for payment of an administrative
expense of a kind specified in Section 503(b), 507(b), or 1114(e)(2)
of the Bankruptcy Code and entitled to priority pursuant to Section
507(a)(1) of the Bankruptcy Code, including, without limitation, (i)
the actual, necessary costs and expenses, incurred after the Petition
Date, of preserving the Debtors' Estates and operating the businesses
of the Debtors or any indebtedness or obligations incurred or assumed
by the Debtors in connection with the conduct of their business, (ii)
all Cure amounts owed in respect of leases and contracts assumed by
the Debtors, (iii) all compensation and reimbursement of expenses to
the extent allowed by the Bankruptcy Court under Section 330 or 503
of the Bankruptcy Code, (iv) any fees or charges assessed against the
Estates of the Debtors under Section 1930 of Chapter 123 of Title 28
of the United States Code, and (v) all Allowed Claims that are
entitled to be treated as Administrative Claims pursuant to a Final
Order of the Bankruptcy Court under Section 546(c)(2)(A) of the
Bankruptcy Code, but expressly excluding Asbestos Personal Injury
Claims, OC Asbestos Property Damage Claims, FB Asbestos Property
Damage Claims, and Intercompany Claims.
1.8 "Affiliate" of, or a Person "Affiliated" with, a specified Person, is
a Person that directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified; provided, that with respect to an
"Affiliate" of a Debtor or a Person "Affiliated" with a Debtor, such
term shall include, without limiting the foregoing definition, the
meaning ascribed thereto in Section 101(2) of the Bankruptcy Code.
1.9 "Allowed" means:
(a) with respect to any Claim, other than an Administrative Claim,
an Asbestos Personal Injury Claim or an FB Asbestos Property
Damage Claim, proof of which was filed within the applicable
period of limitation fixed in accordance with Federal Rule of
Bankruptcy Procedure 3003(c)(3) by the Bankruptcy Court, (i) as
to which no objection to the allowance thereof has been
interposed on or before the Initial Distribution Date and as to
which the Debtors have not sent a notice to the holder of such
Claim by the Initial Distribution Date that the Claim is under
review for possible objection, or (ii) as to which no objection
is filed within the applicable period of limitation fixed by the
Plan, the Bankruptcy Code, the Federal Rules of Bankruptcy
Procedure or a Final Order of the Bankruptcy Court, to the
extent asserted in the proof of such Claim or (iii) as to which
an objection has been interposed, to the extent that such Claim
has been allowed in whole or in part by a Final Order of the
Bankruptcy Court;
(b) with respect to any Claim, other than an Administrative Claim,
an Asbestos Personal Injury Claim or an FB Asbestos Property
Damage Claim, as to which no Proof of Claim was filed within the
applicable period of limitation fixed by the Plan, the
Bankruptcy Code, the Federal Rules of Bankruptcy Procedure or a
Final Order of the Bankruptcy Court, to the extent that such
Claim has been listed by one of the Debtors in its SOFAS as
liquidated in amount and not disputed or contingent and (i) as
to which no objection to the allowance thereof has been
interposed on or before the Initial Distribution Date and as to
which the Debtors have not sent a notice to the holder of such
Claim by the Initial Distribution Date that the Claim is under
review for possible objection, or (ii) as to which no objection
to the allowance thereof has been interposed within the
applicable period of limitation fixed by the Plan, the
Bankruptcy Code, the Federal Rules of Bankruptcy Procedure or a
Final Order of the Bankruptcy Court or (iii) as to which an
objection has been interposed, to the extent that such Claim has
been allowed in whole or in part by a Final Order of the
Bankruptcy Court;
(c) with respect to any other Claim that is asserted to constitute
an Administrative Claim, other than a Claim of a professional
person employed under Section 327 or 1103 of the Bankruptcy Code
that is required to apply to the Bankruptcy Court for the
allowance of compensation and reimbursement of expenses pursuant
to Section 330 of the Bankruptcy Code, (a) that represents an
actual or necessary expense of preserving the Estate or
operating the business of the Debtors, to the extent that such
Claim is reflected as a postpetition liability of any of the
Debtors on the Debtors' books and records as of the Effective
Date, or (b) that the Debtors dispute, to the extent that such
Claim is allowed in whole or in part by a Final Order of the
Bankruptcy Court and only to the extent that such allowed
portion is deemed, pursuant to a Final Order of the Bankruptcy
Court, to constitute a cost or expense of administration under
Sections 503(b) and 507(a)(1) of the Bankruptcy Code;
(d) with respect to any other Claim that is asserted to constitute
an Administrative Claim that represents a Claim of a
professional person employed under Section 327 or 1103 of the
Bankruptcy Code that is required to apply to the Bankruptcy
Court for the allowance of compensation and reimbursement of
expenses pursuant to Section 330 of the Bankruptcy Code, to the
extent that such Claim is allowed by a Final Order of the
Bankruptcy Court under Section 330 of the Bankruptcy Code;
(e) with respect to any Asbestos Personal Injury Claim, such Claim
to the extent that it is Allowed in accordance with the
procedures established pursuant to the Asbestos Personal Injury
Trust Agreement and the Asbestos Personal Injury Trust
Distribution Procedures; or
(f) with respect to any FB Asbestos Property Damage Claim, proof of
which was filed within the applicable period of limitation fixed
in accordance with Bankruptcy Rule 3003(c)(3) by the Bankruptcy
Court, such Claim to the extent that it is Allowed in accordance
with the procedures established pursuant to the FB Asbestos
Property Damage Trust Agreement and the FB Asbestos Property
Damage Trust Distribution Procedures.
1.10 "Amended and Restated Bylaws of Reorganized OCD" means the Amended
and Restated Bylaws of Reorganized OCD to be in effect upon the
Effective Date, substantially in the form to be filed as Exhibit B at
least five (5) Business Days prior to the Objection Deadline.
1.11 "Amended and Restated Certificate of Incorporation of Reorganized
OCD" means the Amended and Restated Certificate of Incorporation of
Reorganized OCD to be in effect upon the Effective Date,
substantially in the form to be filed as Exhibit A at least five (5)
Business Days prior to the Objection Deadline.
1.12 "Asbestos Claimants' Committee" means the official creditors'
committee representing holders of asbestos claims appointed on
October 23, 2000, by the United States Trustee for the District of
Delaware pursuant to Section 1102(a) of the Bankruptcy Code, as
thereafter modified or reconstituted.
1.13 "Asbestos Personal Injury Claims" means, collectively, OC Asbestos
Personal Injury Claims and FB Asbestos Personal Injury Claims.
1.14 "Asbestos Personal Injury Permanent Channeling Injunction" means an
order or orders of the Bankruptcy Court, established by the
Confirmation Order and issued pursuant to this Plan and Section
524(g) of the Bankruptcy Code, pursuant to which all Persons will be
permanently, forever and completely stayed, restrained, prohibited
and enjoined from taking any Enjoined Action or proceeding in any
manner in any place with regard to any matter that is subject to
resolution pursuant to the Asbestos Personal Injury Trust Agreement,
including, without limitation, with respect to any Resolved Asbestos
Personal Injury Claim, except in conformity and compliance therewith,
against any Protected Party or property or interests in property of
any Protected Party, whether directly or indirectly, derivatively or
otherwise, for the purpose of, directly or indirectly, collecting,
recovering, or receiving payment of, on, or with respect to any
Asbestos Personal Injury Claim (other than pursuant to the provisions
of the Asbestos Personal Injury Trust Agreement or to enforce the
provisions of the Plan).
1.15 "Asbestos Personal Injury Trust" means the trust established pursuant
to the Asbestos Personal Injury Trust Agreement.
1.16 "Asbestos Personal Injury Trust Agreement" means the Asbestos
Personal Injury Trust Agreement executed by the Debtors and the
Asbestos Personal Injury Trustees, substantially in the form of the
agreement to be filed as Exhibit D no later than five (5) Business
Days prior to the Disclosure Statement Hearing, as it may be amended
up to five (5) Business Days prior to the Objection Deadline.
1.17 "Asbestos Personal Injury Trust Distribution Procedures" means the
Asbestos Personal Injury Trust Distribution Procedures to be
implemented by the Asbestos Personal Injury Trustees pursuant to the
terms and conditions of the Plan and the Asbestos Personal Injury
Trust Agreement to process, liquidate, and pay Asbestos Personal
Injury Claims, substantially in the form of Exhibit D-1 to be filed
no later than five (5) Business Days prior to the Disclosure
Statement Hearing, as it may be amended up to five (5) Business Days
prior to the Objection Deadline.
1.18 "Asbestos Personal Injury Trustees" means the persons
confirmed by the Bankruptcy Court to serve as trustees of the
Asbestos Personal Injury Trust, pursuant to the terms of the
Asbestos Personal Injury Trust Agreement, or as subsequently
may be appointed pursuant to the provisions of the Asbestos
Personal Injury Trust Agreement.
1.19 "Available Cash" means Cash in the amount of the sum of (i)
all Cash that would be shown as cash or cash equivalents on a
consolidated balance sheet of OC as of the last day of the
month prior to the month in which the Effective Date occurs,
prepared in accordance with United States generally accepted
accounting principles consistent with the past practices of
OC, and (ii) the OCD Reversions, and excluding (a) the OCD
Insurance Escrow, (b) the aggregate amount of Cash to be
distributed to holders of Unclassified Claims, Unimpaired
Claims and Allowed Class 3 Claims, (c) Restricted Cash, (d)
the Existing Fibreboard Insurance Settlement Trust Assets, (e)
the FB Reversions, and (f) the Litigation Trust Assets, and
(g) necessary reserves for working capital and pension
contributions as determined by the Debtors and approved by the
other Plan Proponents.
1.20 "Avoidance Actions" means the adversary proceedings instituted by the
Debtors on behalf of the Estates, listed on Schedule V hereto, as it
may be amended.
1.21 "Ballot" means the ballot form(s) distributed with the Disclosure
Statement to holders of Impaired Claims entitled to vote as specified
in Section 4.1 of the Plan, in connection with the solicitation of
acceptance of the Plan.
1.22 "Ballot Date" means the date set by the Bankruptcy Court by which all
Ballots must be received.
1.23 "Bank Holders" means the holders of the Debtors' obligations under
the 1997 Credit Agreement.
1.24 "Bank Holders Action" means with the action entitled Owens Corning,
et al. v. Credit Suisse First Boston, et al., in the United States
District Court for the District of Delaware, A-02-5829, as such
action may be amended.
1.25 "Bank Holders Claims" means those Claims of Bank Holders arising
under or as a result of the Debtors' obligations under the 1997
Credit Agreement.
1.26 "Bankruptcy Code" means Title 11 of the United States Code, as
amended and in effect from time to time.
1.27 "Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware, having jurisdiction over the Chapter 11 Case to
the extent of any reference made to it by the District Court pursuant
to 28 U.S.C. ss.157 as a unit of such District Court pursuant to 28
U.S.C. ss.151.
1.28 "Bankruptcy Rules" means, collectively, the Federal Rules of
Bankruptcy Procedure and the Official Bankruptcy Forms, as amended,
the Federal Rules of Civil Procedure, as amended, as applicable to
the Chapter 11 Cases or proceedings therein, and the Local Rules of
the Bankruptcy Court, as amended, as applicable to the Chapter 11
Cases or proceedings therein, as the case may be.
1.29 "Board of Directors" means the board of directors or its equivalent
of a corporation or other legal entity, including managers of a
limited liability company, general partners of a partnership or
trustees of a business trust, or any duly authorized committee
thereof.
1.30 "Bondholders" means the registered holders of Pre-petition Bonds.
1.31 "Bondholders Claims" means the Claims held by the Bondholders arising
under or as a result of the Debtors' obligations under the
Pre-petition Bonds.
1.32 "Business Day" means any day, excluding Saturdays, Sundays or "legal
holidays" (as defined in Federal Rule of Bankruptcy Procedure
9006(a)) on which commercial banks are open for business in New York,
New York.
1.33 "Cash" means legal tender of the United States or equivalents
thereof.
1.34 "Chapter 11" means Chapter 11 of the Bankruptcy Code.
1.35 "Chapter 11 Cases" means the reorganization cases of the Debtors
under Chapter 11.
1.36 "Claim" means a claim as defined in Section 101(5) of the Bankruptcy
Code against the Debtors, or any of them, whether or not asserted.
1.37 "Claimant Released Parties" means (i) the Debtors, the Reorganized
Debtors and their respective predecessors, successors and assigns
(whether by operation of law or otherwise) and their respective
present and former Affiliates as of the Petition Date or thereafter,
and additionally (ii) if the Person granting the release votes in
favor of the Plan, the Released Parties.
1.38 "Claims Objection Deadline" means the last day for filing objections
to Disputed Claims, which day shall be one hundred and eighty (180)
days after the Effective Date, unless extended by order of the
Bankruptcy Court prior to the expiration thereof.
1.39 "Claims Trading Injunction" means an order or orders of the
Bankruptcy Court permanently and forever staying, restraining, and
enjoining any Person from, directly or indirectly, purchasing,
selling, transferring, assigning, conveying, pledging, or otherwise
acquiring or disposing of any Asbestos Personal Injury Claim,
provided, however, that the foregoing shall not apply to (i) the
transfer of an Asbestos Personal Injury Claim to the holder of an OC
Indirect Asbestos PI Trust Claim or FB Indirect Asbestos PI Trust
Claim solely as a result of such holder's satisfaction of such
Asbestos Personal Injury Claim, or (ii) the transfer of an Asbestos
Personal Injury Claim by will or under the laws of descent and
distribution. Any such order or orders also will provide that any
action taken in violation thereof will be void ab initio.
1.40 "Class" means a category of holders of Claims or Interests, as
described in Articles II and III of the Plan.
1.41 "Class ___ Final Distribution Percentage" means for each applicable
class, the percentage determined by dividing the total amount of all
Allowed Claims in such Class by the sum of (i) the aggregate amount
of all Allowed Claims in Classes 4, 5, and 6 and (ii) the Class 7
Aggregate Amount; provided, however, that in the event Class 4
accepts the Plan, the denominator shall be reduced by the Guarantee
Settlement Value, and for purposes of calculating the Class 4 Final
Distribution Percentage, the numerator also shall be reduced by the
Guarantee Settlement Value.
1.42 "Class ___ Initial Distribution Percentage" means for each applicable
Class, the percentage determined by dividing the total amount of all
Allowed Claims in such Class by the sum of (i) the aggregate amount
of all Allowed Claims in Classes 4, 5, and 6, (ii) the Class 7
Aggregate Amount, and (iii) the aggregate amount of all Disputed
Claims in Classes 4, 5, and 6; provided, however, that in the event
Class 4 accepts the Plan, the denominator shall be reduced by the
Guarantee Settlement Value, and for purposes of calculating the Class
4 Initial Distribution Percentage, the numerator also shall be
reduced by the Guarantee Settlement Value.
1.43 "Class 7 Aggregate Amount" means (i) if Class 4 accepts the Plan, the
amount of $10.7 billion, less the OCD Insurance Escrow and the OC
Asbestos Personal Injury Liability Insurance Assets or (ii) if Class
4 rejects the Plan, an amount equal to the present value of OC
Asbestos Personal Injury Claims, as shall be estimated by the
Bankruptcy Court or the District Court at the Confirmation Hearing,
less the OCD Insurance Escrow and the OC Asbestos Personal Injury
Liability Insurance Assets, as shall be estimated by the Bankruptcy
Court or the District Court at the Confirmation Hearing.
1.44 "Class 8 Aggregate Amount" means (i) if Class 4 accepts the Plan, the
amount of $5.3 billion, less the sum of the Existing Fibreboard
Insurance Settlement Trust Assets, the FB Reversions and the
Committed Claims Account, or (ii) if Class 4 rejects the Plan, an
amount equal to the present value of FB Asbestos Personal Injury
Claims, as shall be estimated by the Bankruptcy Court or the District
Court at the Confirmation Hearing, less the sum of the Existing
Fibreboard Insurance Settlement Trust Assets, the FB Reversions and
the Committed Claims Account, as shall be estimated by the Bankruptcy
Court or the District Court at the Confirmation Hearing.
1.45 "Combined Distribution Package" means the combination of total
Available Cash, Senior Notes, New OCD Common Stock and Litigation
Trust Recoveries to be paid or issued under the Plan on a pro rated
basis (other than the Guarantee Settlement Payment to be paid to
Class 4 if Class 4 accepts the Plan and the FB Sub-Account Settlement
Payment to be paid to the FB Sub-Account of the Asbestos Personal
Injury Trust for the benefit of Class 8) to holders of Claims in
Classes 4, 5, 6, and 7, the exact composition of which shall be set
forth in Schedule XII, to be filed no later than the filing of the
Disclosure Statement, as it may be amended up to five (5) Business
Days prior to the Disclosure Statement Hearing.
1.46 "Combined Net Distribution Package" means the combination of
Available Cash, Senior Notes and New OCD Stock remaining after
payment of (i) the Guarantee Settlement Payment to be paid to Class 4
in the event that Class 4 accepts the Plan, and (ii) the FB
Sub-Account Settlement Payment to be paid to the FB Sub-Account of
the Asbestos Personal Injury Trust for the benefit of Class 8, which
remaining Available Cash, Senior Notes and New OCD Stock are to be
paid to holders of Claims in Classes 4, 5, 6, and 7 in the event that
Class 4 accepts the Plan. The exact composition of the Combined Net
Distribution Package shall be set forth in Schedule XIII, to be filed
no later than the filing of the Disclosure Statement, as it may be
amended up to five (5) Business Days prior to the Disclosure
Statement Hearing.
1.47 "Commercial Claims" means rights, claims, causes of action, suits or
proceedings for the collection of debts owed to any of the Debtors
from purchasers of goods and services from the Debtor or to collect
sums from vendors, suppliers or other parties for breaches of
contract in commercial relationships with any of the Debtors or to
recover money based on such other commercial relationship of a Debtor
that arise in the ordinary course of business. Commercial Claims
shall not include Avoidance Actions or any other rights, claims,
causes of action, suits or proceedings created by title 11 of the
United States Code.
1.48 "Committed Claims Account" means the remaining balance of the account
established pursuant to a certain Agreement Between Fibreboard and
Continental [Casualty Corporation] on Remaining Issues dated December
13, 1999, which was the subject of a Stipulation and Agreed Order
Between Debtors and Continental Casualty Company Regarding Status and
Disposition of Funds in Committed Claims Account and Related Matters
Under Buckets Agreement, entered by the Bankruptcy Court on June 27,
2001.
1.49 "Committees" means the Asbestos Claimants' Committee and the
Unsecured Creditors' Committee.
1.50 "Confirmation Conditions" means those conditions to confirmation of
the plan set forth in Section 12.1 of the Plan.
1.51 "Confirmation Date" means the date of entry of the Confirmation Order
by the clerk of the Bankruptcy Court.
1.52 "Confirmation Hearing" means the hearing on confirmation of the Plan
scheduled by the Bankruptcy Court pursuant to Section 1128 of the
Bankruptcy Code and Federal Rule of Bankruptcy Procedure 3017(c).
1.53 "Confirmation Order" means the order entered by the Bankruptcy Court
confirming the Plan.
1.54 "Convenience Claim" means a Claim against any of the Debtors that
would otherwise be classified as a Class 6 Claim, which (i) is in an
amount that is equal to or less than $5,000 or (ii) on the Ballot has
been reduced to $5,000 by the holder of such Claim.
1.55 "CSFB" means Credit Suisse First Boston, the agent for the Bank
Holders under the 1997 Credit Agreement.
1.56 "Cure" means, with respect to the assumption of an executory contract
or unexpired lease, pursuant to Section 365(b) of the Bankruptcy
Code, the distribution of Cash, or 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 such
executory contract or unexpired lease, to the extent such obligations
are enforceable under the Bankruptcy Code and applicable bankruptcy
law.
1.57 "Debt" means the Pre-petition Bonds and any other promissory note,
bond, indenture, or other instrument or document evidencing or
creating any indebtedness for borrowed money or capital lease
obligation of a Debtor existing prior to the Effective Date, other
than any such instrument or document that evidences or creates (i)
any Intercompany Claim or (ii) any executory contract or lease that
has been assumed or will be assumed pursuant to the Plan.
1.58 "Debt Agreements" means the 1997 Credit Agreement, the Pre-petition
Bonds, the Pre-Petition Bond Indentures and any other agreements,
indentures or other instruments or documents governing, evidencing or
creating any Debt.
1.59 "Debtors" means, collectively, OCD and the Subsidiary Debtors.
1.60 "Debtors-in-Possession" means the Debtors, each in its respective
capacity as a debtor-in-possession pursuant to Section 1107(a) and
1108 of the Bankruptcy Code.
1.61 "Demand" means a present or future demand for payment that (i) was
not a Claim during the Chapter 11 Cases; (ii) arises out of the same
or similar conduct or events that gave rise to the Claims addressed
by the Asbestos Personal Injury Permanent Channeling Injunction; and
(iii) pursuant to the Plan, is to be paid or otherwise resolved by
the Asbestos Personal Injury Trust.
1.62 "DIP Agent" means Bank of America, N.A., as administrative agent of
the DIP Facility.
1.63 "DIP Facility" means the debtor-in-possession credit facility
pursuant to the Post-Petition Credit Agreement, dated December 8,
2000, by and among the financial institutions named therein, as the
lenders, Bank of America, N.A., as the agent, and OCD and the
Subsidiaries of OCD named therein, as the borrowers, as amended
pursuant to the First Amendment to Post-Petition Credit Agreement by
and among OCD as Borrower Representative on behalf of the borrowers
under the Post-Petition Credit Agreement, Bank of America, N.A., as
agent and the Lenders signatory thereto, dated as of October 28,
2002, as further amended, modified, renewed or otherwise in effect
from time to time.
1.64 "DIP Facility Claims" means those Claims arising under or as a result
of the DIP Facility.
1.65 "DIP Lenders" means the lenders party to the DIP Facility, and their
successors and assigns.
1.66 "Disallowed Claim" means (i) all or such part of a Claim, other than
an Asbestos Personal Injury Claim and an FB Asbestos Property Damage
Claim, that is disallowed by a Final Order of the Bankruptcy Court or
other court of competent jurisdiction, (ii) an Asbestos Personal
Injury Claim that is disallowed in its entirety pursuant to the
Asbestos Personal Injury Trust Distribution Procedures or (iii) an FB
Asbestos Property Damage Claim that is disallowed in its entirety
pursuant to the FB Asbestos Property Damage Trust Distribution
Procedures.
1.67 "Disbursing Agent" means, as applicable, Reorganized OCD or any
Person designated by the Plan Proponents to serve as a disbursing
agent under the Plan.
1.68 "Disclosure Statement" means the disclosure statement filed or to be
filed in the Bankruptcy Court by the Plan Proponents, as it may be
amended from time to time, in connection with the Plan pursuant to
Section 1125 of the Bankruptcy Code and Federal Rule of Bankruptcy
Procedure 3018.
1.69 "Disclosure Statement Hearing" means the hearing before the
Bankruptcy Court to be held in connection with the approval of the
Disclosure Statement.
1.70 "Disputed Claim" means any Class 1, Class 2A, Class 2B, Class 3,
Class 4, Class 5, or Class 6 Claim, or any portion thereof, that is
neither an Allowed Claim nor a Disallowed Claim.
1.71 "Disputed Distribution Reserve" means the reserve established
pursuant to Section 9.3 of the Plan.
1.72 "Distribution Record Date" means the record date for purposes of
making distributions under the Plan on account of Allowed Claims
(other than Asbestos Personal Injury Claims or FB Asbestos Property
Damage Claims), which date shall be the Confirmation Date or such
other date as may be designated in the Confirmation Order.
1.73 "Distributable Shares" means all New OCD Common Stock to be
distributed as part of (i) the Guarantee Settlement Payment if Class
4 accepts the Plan, (ii) the FB Sub-Account Settlement Payment, and
(iii) either the Combined Distribution Package or the Combined Net
Distribution Package.
1.74 "District Court" means the United States District Court for the
District of Delaware, having jurisdiction over the Chapter 11 Cases.
1.75 "Effective Date" means the Business Day on which all conditions to
the consummation of the Plan have been satisfied or waived as
provided in Article XII of the Plan, and is the effective date of the
Plan.
1.76 "Encumbrance" means, with respect to any property, tangible or
intangible, any mortgage, lien, pledge, charge, security interest,
assignment, or encumbrance of any nature in respect of such property
(including, without express or implied limitation, any conditional
sale or other title retention agreement, any security agreement, and
the filing of, or agreement to give, any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction).
1.77 "Enjoined Action" means (i) the commencement, conduct, or
continuation in any manner, directly or indirectly (including an
action directly against a provider of insurance), of any suit, action
or other proceeding (including, without limitation, any judicial,
arbitral, administrative or other proceeding) in any forum; (ii) the
enforcement, attachment (including, without limitation, any
prejudgment attachment), collection or seeking to recover any
judgment, award, decree, or other order; (iii) the creation,
perfection or enforcement in any manner, directly or indirectly, of
any Encumbrance; (iv) the setting off, seeking reimbursement of,
contribution from, or subrogation against, or other recoupment in any
manner, directly or indirectly, of any amount against any liability
owed to any Protected Parties, and (v) the commencement or
continuation, in any manner, in any place, of any action which, in
any such case, does not comply with or is inconsistent with the
provisions of the Plan.
1.78 "Environmental Claims" means, with respect to conduct of the Debtors
prior to the Petition Date, (i) Claims against the Debtors by the EPA
for the costs of environmental investigation and clean up of sites
that may have been contaminated as a result of releases of hazardous
substances by the Debtors, including releases at third-party disposal
sites used by the Debtors; (ii) similar Claims by state and local
environmental agencies; (iii) Claims by private parties against the
Debtors asserting contribution or indemnification claims with respect
to cleanup costs under statutory law or contractual agreements; and
(iv) enforcement actions by federal, state and local environmental
agencies with respect to alleged violations of environmental law;
provided, however, that this definition excludes any Claim in clauses
(i) - (iv) treated as an Administrative Claim.
1.79 "EPA" means the United States Environmental Protection Agency.
1.80 "Estates" means the Debtors' bankruptcy estates created pursuant to
Section 541 of the Bankruptcy Code.
1.81 "Excess Available Cash" means the amount of Available Cash, together
with interest earned thereon, remaining in the Disputed Distribution
Reserve after all Disputed Claims shall have been Allowed and paid or
Disallowed pursuant to a Final Order of the Bankruptcy Court.
1.82 "Excess Litigation Trust Recoveries" means the amount of Litigation
Trust Recoveries, together with interest earned thereon, remaining in
the Disputed Distribution Reserve after all Disputed Claims shall
have been Allowed and paid or Disallowed pursuant to a Final Order of
the Bankruptcy Court.
1.83 "Excess New OCD Common Stock" means the aggregate number of shares of
New OCD Common Stock remaining in the Disputed Distribution Reserve
after all Disputed Claims shall have been Allowed and paid or
Disallowed pursuant to a Final Order of the Bankruptcy Court.
1.84 "Excess Senior Notes" means the Senior Notes remaining in the
Disputed Distribution Reserve after all Disputed Claims shall have
been Allowed and paid or Disallowed pursuant to a Final Order of the
Bankruptcy Court.
1.85 "Excess Senior Notes Amount" means the aggregate principal amount of
the Excess Senior Notes, together with any interest earned thereon
subsequent to the Effective Date.
1.86 "Existing Fibreboard Insurance Settlement Trust Assets" means all of
the assets of the Fibreboard Insurance Settlement Trust as of the
Effective Date, net of accrued administrative fees and expenses.
1.87 "Existing OCD Common Stock" means the common stock, par value $0.10
per share, of OCD, of which 100 million shares were authorized and
55,423,132 shares were issued and outstanding as of September 30,
2000.
1.88 "Existing OCD Options" means any options, warrants, conversion
rights, rights of first refusal or other rights, contractual or
otherwise, to acquire or receive any Existing OCD Common Stock,
Existing OCD Preferred Stock or any other capital stock of OCD
outstanding as of the Petition Date.
1.89 "Existing OCD Preferred Stock" means the preferred stock, without par
value, of OCD, of which 8,000,000 shares were authorized and none
were outstanding as of the Petition Date.
1.90 "Exit Facility" means such bank financing agreements and commitments
as the Debtors shall have arranged on the Effective Date, including
term loans and revolving credit facilities, for general working
capital and corporate purposes, in such amounts and on such terms as
are satisfactory to the Debtors and the Plan Proponents.
1.91 "Face Amount" means (i) when used in reference to a Disputed Claim,
the full stated amount claimed by the holder of such Claim in any
Proof of Claim timely filed with the Bankruptcy Court or otherwise
deemed timely filed by any Final Order of the Bankruptcy Court or
other applicable bankruptcy law, and (ii) when used in reference to
an Allowed Claim, the Allowed amount of such Claim.
1.92 "FB Asbestos Personal Injury Claim" means any present or future right
to payment, claim, remedy, liability or Demand against any FB Person
for death, bodily injury, or other personal damages (whether
physical, emotional or otherwise), whether or not such right, claim,
remedy, liability or Demand is reduced to judgment, liquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured, whether or not the facts of or
legal basis for such right, claim, remedy, liability or Demand are
known or unknown, under any theory of law, equity, admiralty, or
otherwise, to the extent caused or allegedly caused, directly or
indirectly, by the presence of, or exposure to asbestos or
asbestos-containing products that for which any FB Person may be
legally liable, including, without limitation, the presence of, or
exposure to, asbestos or asbestos-containing products that were
manufactured, installed, fabricated, sold, supplied, produced,
distributed, released, or in any way at any time marketed or disposed
of by any FB Person, including, without express or implied
limitation, any right, claim, remedy, liability or Demand for
compensatory damages (such as loss of consortium, wrongful death,
survivorship, proximate, consequential, general and special damages)
and including punitive damages. FB Asbestos Personal Injury Claims
(i) include FB Indirect Asbestos PI Trust Claims and Unpaid FB
Resolved Asbestos Personal Injury Claims, but (ii) exclude FB
Resolved Asbestos Personal Injury Claims, FB Asbestos Property Damage
Claims, FB Indirect Asbestos Property Damage Claims, workers'
compensation claims, OC Asbestos Personal Injury Claims, OC Indirect
Asbestos PI Trust Claims, OC Asbestos Property Damage Claims, and OC
Indirect Asbestos Property Damage Claims.
1.93 "FB Asbestos Property Damage Claim" means any present or future right
to payment, claim, remedy, or liability against, or debt or
obligation of, any FB Person, whether or not the facts or legal basis
for such right, claim, remedy, liability, debt or obligation are
known or unknown, under any theory of law, equity, admiralty, or
otherwise for, relating to, or arising by reason of, directly or
indirectly, damage to property, including, without limitation,
diminution in the value thereof, or environmental damage or economic
loss related thereto, caused or allegedly caused, directly or
indirectly, in whole or in part by the presence in buildings or other
systems or structures of asbestos or asbestos-containing products for
which any FB Person may be legally liable, including, without
limitation, the presence of, or exposure to, asbestos or
asbestos-containing products that were manufactured, installed,
fabricated, sold, supplied, produced, distributed, released or in any
way at any time marketed or disposed of by any FB Person prior to the
Petition Date, or for which any FB Person is liable due to the acts
or omissions of any FB Person, including, without express or implied
limitation, any right, claim, remedy, liability against, or debt or
obligation for compensatory damages (such as proximate,
consequential, general and special damages) and including punitive
damages. FB Asbestos Property Damage Claims include FB Indirect
Asbestos Property Damage Claims.
1.94 "FB Asbestos Property Damage Insurance Assets" means rights to
coverage for FB Asbestos Property Damage Claims under liability
insurance policies issued to Fibreboard and identified in Schedule
XVI, to be filed at least five (5) Business Days prior to the
Objection Deadline. The foregoing includes, without limitation, (i)
rights under such insurance policies, rights under settlement
agreements made with respect to such insurance policies, Insolvent
Insurer PD Rights, and Insurance Guarantee Fund PD Rights; and (ii)
the right, on behalf of the Debtors, to give a full release of the
insurance rights of the Debtors for FB Asbestos Property Damage
Claims under any such policies or related agreements, provided that a
reciprocal release of the Debtors in connection with said policies or
agreements is given in exchange by the insurer or other released
insurance entity and further provided that any such release shall not
encompass rights with respect to coverage for worker's compensation
claims or with respect to coverage other than for FB Asbestos
Property Damage Claims.
1.95 "FB Asbestos Property Damage Trust" means the trust established by
Fibreboard in accordance with the FB Asbestos Property Damage Trust
Agreement.
1.96 "FB Asbestos Property Damage Trust Agreement" means that certain FB
Asbestos Property Damage Settlement Trust Agreement, executed by
Fibreboard and the FB Asbestos Property Damage Trustee, substantially
in the form of Exhibit E to be filed no later than five (5) Business
Days prior to the Disclosure Statement Hearing, as it may be amended
up to five (5) Business Days prior to the Objection Deadline.
1.97 "FB Asbestos Property Damage Trust Distribution Procedures" means the
FB Asbestos Property Damage Trust Distribution Procedures to be
implemented by the FB Asbestos Property Damage Trustee pursuant to
the terms and conditions of the Plan and the FB Asbestos Property
Damage Trust Agreement to process, liquidate, and pay FB Asbestos
Property Damage Claims, substantially in the form of Exhibit E-1, to
be filed no later than five (5) Business Days prior to the Disclosure
Statement Hearing, as it may be amended up to five (5) Business Days
prior to the Objection Deadline.
1.98 "FB Asbestos Property Damage Trustee" means the Person confirmed by
the Bankruptcy Court to serve as trustee of the FB Asbestos Property
Damage Trust, pursuant to the terms of the FB Asbestos Property
Damage Trust Agreement, or as subsequently may be appointed pursuant
to the provisions of the FB Asbestos Property Damage Trust Agreement.
1.99 "FB Indirect Asbestos PI Trust Claim" means any present or future
right to payment, claim, remedy, liability, or Demand against any FB
Person, whether or not such right, claim, remedy, liability or Demand
is reduced to judgment, liquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, whether or not the facts of or legal basis for such right,
claim, remedy, liability, or Demand are known or unknown, under any
theory of law, equity, admiralty, or otherwise, that is (i) asserted
by (a) any Person (other than (I) an FB Person or (II) Related
Persons of the Debtors or Reorganized Debtors entitled to
indemnification pursuant to Section 7.5 of the Plan) who has been, is
or may be a defendant in an action seeking damages for death, bodily
injury or other personal damages (whether physical, emotional or
otherwise), to the extent caused or allegedly caused, directly or
indirectly, by the presence of, or exposure to asbestos or
asbestos-containing products for which any FB Person may be legally
liable, including, without limitation, the presence of, or exposure
to, asbestos or asbestos-containing products that were manufactured,
installed, fabricated, sold, supplied, produced, distributed,
released, or in any way at any time marketed or disposed of by any FB
Person, or (b) any assignee or transferee of such Person, and (ii) on
account of alleged liability of any FB Person for reimbursement,
contribution, subrogation or indemnification of any portion of any
damages such Person has paid or may pay to the plaintiff in such
action.
1.100 "FB Indirect Asbestos Property Damage Claim" means any present or
future right to payment, claim, remedy or liability against, or debt
or obligation of, any FB Person, whether or not the facts of or legal
basis for such right, claim, remedy or liability, debt or obligation
are known or unknown, under any theory of law, equity, admiralty, or
otherwise that is (i) asserted by (a) any Person (other than (I) an
FB Person or (II) a Related Person of the Debtors or Reorganized
Debtors entitled to indemnification pursuant to Section 7.5 of the
Plan) who has been, is, or may be a defendant in an action seeking
damages for, relating to, or arising by reason of, directly or
indirectly, damage to property, including without limitation,
diminution in the value thereof, or environmental damage or economic
loss related thereto, caused or allegedly caused, directly or
indirectly, in whole or in part by the presence in buildings or other
systems or structures of asbestos or asbestos-containing products for
which any FB Person may be legally liable, including, without
limitation, the presence of, or exposure to, asbestos or
asbestos-containing products that were manufactured, installed,
fabricated, sold, supplied, produced, distributed, released or in any
way at any time marketed or disposed of by any FB Person, prior to
the Petition Date, or for which any FB Person is otherwise liable due
to the acts or omissions of any FB Person or (b) any assignee or
transferee of such Person, and (ii) on account of alleged liability
of any FB Person for reimbursement, contribution, subrogation or
indemnification of any portion of any damages such Person has paid or
may pay to the plaintiff in such action.
1.101 "FB Person" means each of (i) Fibreboard and its direct or indirect
Subsidiaries, (ii) Fibreboard's and its direct or indirect
Subsidiaries' respective predecessors in interest, but solely to the
extent listed on Schedule VIII, to be filed no later than five (5)
Business Days prior to the Disclosure Statement Hearing, as it may be
amended up to five (5) Business Days prior to the Objection Deadline,
(iii) Fibreboard's and its direct or indirect Subsidiaries'
respective successors in interest, but solely to the extent they
either (a) are listed on Schedule VIII, or (b) are post-Effective
Date successors in interest, (iv) Fibreboard's and its direct or
indirect Subsidiaries' respective controlled Affiliates, but solely
to the extent listed on Schedule VIII, and (v) the respective former
and present employees, directors or officers of the Persons
identified in clauses (i), (ii), (iii) and (iv) of this Section
1.101, acting in such capacity.
1.102 "FB Resolved Asbestos Personal Injury Claim" means an FB Asbestos
Personal Injury Claim with respect to which (i) the holder of such
Claim (a) is represented by an attorney of record who has entered
into an enforceable NSP Agreement with Fibreboard and (b) has
satisfied all of the preconditions to payment under the applicable
NSP Agreement prior to the Petition Date (including, without
limitation, the submission of information about the Claim holder's
exposure and injury as well as the delivery of a properly executed
release relating to such Claim) and (ii) such Claims are eligible to
be paid from settlement accounts in respect of FB Asbestos Personal
Injury Claims, to facilitate claims processing under the NSP,
including settlement accounts maintained by (a) Baron & Budd, P.C.,
(b) Foster & Sear, LLP, (c) Waters & Kraus, LLP, or (d) Weitz &
Luxenberg, and such monies are available to pay such claims and have
not been, or are not subject to being, avoided and recovered for the
benefit of the Fibreboard Insurance Settlement Trust.
1.103 "FB Restricted Cash" means the amount of administrative deposits by
Fibreboard in settlement accounts (together with earnings thereon) in
respect of FB Asbestos Personal Injury Claims to facilitate claims
processing under the NSP as of five (5) Business Days prior to the
Effective Date.
1.104 "FB Reversions" means such amounts as may from time to time be
released from the settlement accounts in respect of FB Asbestos
Personal Injury Claims to facilitate claims processing under the NSP
and returned to the Fibreboard Insurance Settlement Trust or FB
Sub-Account of the Asbestos Personal Injury Trust, whichever is
applicable. FB Reversions shall include any recoveries, including any
recoveries on account of Avoidance Actions, which recover funds paid
from the Fibreboard Insurance Settlement Trust.
1.105 "FB Sub-Account" means the sub-account of the Asbestos Personal
Injury Trust established for the purposes of assuming any and all
liabilities and responsibility for FB Asbestos Personal Injury Claims
and making payments in respect of such Claims in accordance with the
Plan and the Asbestos Personal Injury Trust Distribution Procedures.
1.106 "FB Sub-Account Settlement Payment" means the combination of Cash,
Senior Notes and New OCD Common Stock in the respective amounts set
forth in Schedule XVIII, to be filed no later than the filing of the
Disclosure Statement, to be paid into the FB Sub-Account of the
Asbestos Personal Injury Trust for the benefit of the holders of FB
Asbestos Personal Injury Claims.
1.107 "Fibreboard" means Fibreboard Corporation, a Delaware corporation.
1.108 "Fibreboard Insurance Settlement Trust" means the Fibreboard
Settlement Trust established by the Irrevocable Settlement Trust
Agreement, dated as of December 30, 1996, among Fibreboard, as
trustor, Michael R. Douglas, as interim trustee, and certain
insurance companies, pursuant to the Settlement Agreement dated
October 12, 1993.
1.109 "Filing" means the filing with the Bankruptcy Court of voluntary
petitions for relief under Chapter 11 made by OCD and the Subsidiary
Debtors.
1.110 "Final Distribution Date" means the fifteenth day after the date that
all Disputed Claims shall have been Allowed or Disallowed pursuant to
a Final Order of the Bankruptcy Court, provided that if such day is
not a Business Day, then the next Business Day thereafter.
1.111 "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 Cases, 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 has expired and as to which no appeal or
petition for review or rehearing was filed or, if filed, remains
pending.
1.112 "Future Claimants' Representative" means James J. McMonagle, the
legal representative for future claimants appointed by order of the
Bankruptcy Court dated September 28, 2001, or his successors.
1.113 "General Unsecured Claim" means a Claim against any of the Debtors
that is not a DIP Facility Claim, an Administrative Claim, a Priority
Tax Claim, an Other Priority Claim, an Other Secured Tax Claim, an
Other Secured Claim, a Convenience Claim, a Bank Holders Claim, a
Bondholders Claim, an OC Asbestos Personal Injury Claim, an FB
Asbestos Personal Injury Claim, an FB Asbestos Property Damage Claim,
an Intercompany Claim or an OCD Interest. General Unsecured Claims
include, without limitation, all Environmental Claims and OC Asbestos
Property Damage Claims.
1.114 "Guarantee Settlement Payment" means (i) Cash in the amount of $20
million; (ii) Senior Notes in an aggregate principal amount equal to
the sum of $180 million; and (iii) 8 million shares of New OCD Common
Stock, with an estimated value of $200 million, which will be paid to
holders of Class 4 Allowed Claims in the event that Class 4 accepts
the Plan.
1.115 "Guarantee Settlement Value" means $400 million.
1.116 "Hartford Entities" means (i) the Hartford Financial Services Group,
Inc., Excess Insurance Company, Ltd., Fencourt Reinsurance Company,
Ltd., First State Insurance Company, Hartford Accident and Indemnity
Company, Hartford Casualty Insurance Company, Hartford Fire Insurance
Company, Hartford Insurance Company of Canada, Hartford Insurance
Company of Illinois, Hartford Insurance Company of the Midwest,
Hartford Insurance Company of the Southeast, Hartford Insurance, Ltd.
(Bermuda), Hartford Lloyds Insurance Company, Hartford Underwriters
Insurance Company (formerly New York Underwriters Insurance Company),
New England Insurance Company, New England Reinsurance Corporation,
Nutmeg Insurance Company, Pacific Insurance Company, Ltd., Property
and Casualty Insurance Company of Hartford, Sentinel Insurance
Company, Ltd., Trumbull Insurance Company, and Twin City Fire
Insurance Company; as well as (ii) all of their respective
predecessors, successors, assigns, subsidiaries, affiliates, holding
companies (if any), parent companies (if any), merged companies and
acquired companies, exclusive of any former asset, affiliate, or
member company of Reliance Group Holdings, Inc.; and (iii) all of the
respective employees, officials, agents, attorneys, representatives,
officers, and directors, in their capacity as such, of the entities
encompassed by clauses (i) and (ii).
1.117 "Hartford Policies" means the following policies issued to OCD:
Issuer Policy Period Policy Number
------ ------------- --------------
First State 06/18/74 to 10/22/74 921434
10/22/74 to 10/22/75 921434
10/22/75 to 10/22/76 921434
10/22/76 to 10/22/77 923542
10/22/77 to 9/01/78 925625
09/01/78 to 09/01/79 926735
03/08/79 to 09/01/79 927953
09/01/82 to 09/01/83 934962
Twin City 09/01/82 to 09/01/83 TXX111365
Excess 09/01/79 to 09/01/80 EL 10300 (EL 10-87)
First State 09/01/82 to 09/01/83 933186
09/01/83 to 09/01/84 EU 935321
09/01/83 to 09/01/84 EU 935324
10/31/79 to 11/29/82 GC802752
04/01/81 to 04/01/84 GC802770
05/01/88 to 05/01/89 GC009556
05/01/89 to 05/01/90 GC010810
Hartford 12/01/74 to 12/01/75 57 IC 620122
Pacific 05/01/93 to 05/01/94 ZG 0001003
04/01/94 to 04/01/95 ZG 0002864
05/01/95 to 05/01/96 ZG 0004839
05/01/96 to 05/01/97 ZG 0006912
05/01/97 to 05/01/98 ZG 0008946
Twin City 09/01/83 to 09/01/84 TXX 102719
The foregoing term shall also include all insurance policies
("Unknown Policies") other than the above-listed policies, that were
issued, prior to January 1, 2001, by and in the name of one of the
specifically named Hartford Entities, either to OCD or that insure
OCD, and such Unknown Policies shall include all known and unknown
primary, umbrella, excess, or other insurance policies, contracts,
and/or agreements of any nature, type, of kind (including but not
limited to: all comprehensive general liability policies; general
liability policies; casualty policies, environmental liability
policies; environmental impairment policies; difference in conditions
policies; directors' and officers' liability policies; errors and
omissions liability policies; contractual liability policies;
automobile liability policies; products liability policies; and
workers' compensation policies). Notwithstanding any of the foregoing
and for the avoidance of any doubt, Unknown Policies shall not
include: (i) policies issued by one of the specifically named
Hartford Entities to Persons other than OCD or the Debtors (except to
the extent of the interest of OCD in such policies); (ii) policies
issued to Persons that become Affiliates of OCD or Reorganized OCD
after June 18, 2001; (iii) policies issued or subscribed by Excess
Insurance Company Ltd. that are subject to a May 15, 1999 settlement
agreement between OCD and London Market Insurers; (iv) First State
policy number EU 935321 to the extent that it provides coverage for
products/completed operations claims other than asbestos claims; and
(v) policies issued to or insuring Fibreboard.
1.118 "Hartford Settlement Agreement"
means the Settlement Agreement between Owens Corning and the Hartford
Financial Services Group, Inc., dated June 18, 2001, and approved by
the Bankruptcy Court by Order dated July 16, 2001.
1.119 "Impaired" means, when used with reference to a Claim or Interest, or
a Class of Claims or Interests, a Claim or Interest, or a Class of
Claims or Interests, that is impaired within the meaning of Section
1124 of the Bankruptcy Code.
1.120 "Indemnification Obligations" means any legally enforceable
obligations of any of the Debtors under their charters, by-laws,
contracts assumed by them pursuant to Section 365 of the Bankruptcy
Code, or statute, to indemnify, reimburse or provide contribution to
any or all persons who may serve or who have served at any time as
directors, officers, employees, agents, professionals or advisors of
such Debtor, or who at the request of any of the Debtors served as
directors, officers, employees, agents, professionals or advisors of
another corporation (including Subsidiaries of the Debtors) or of any
partnership, joint venture, trust or other enterprise, and any
directors, officers, employees, agents, professionals or advisors of
any of the Debtors who at the request of such Debtor may serve or
have served as agents or fiduciaries of an employee benefit plan of
such Debtor or any of its Subsidiaries, from and against any of the
expenses, liabilities or other matters arising under or in or covered
by applicable law, provided that the basis of such proceeding is
alleged action in an official capacity as a director, officer,
employee, agent, professional or advisor or in any other capacity
while serving as a director, officer, employee, agent, professional
or advisor, and provided that such obligations shall not cover
willful misconduct. Notwithstanding anything to the contrary herein,
Indemnification Obligations shall not include any obligations of the
Debtors to pay or reimburse any party in connection with (i) funds
recovered or to be recovered from such party pursuant to an Avoidance
Action, or (ii) claims arising out of or in connection with the case
of John Hancock Life Insurance Co., et al. v. Goldman, Sachs & Co.,
et al., in the United States District Court for the District of
Massachusetts, C.A. No. 01-10729-RWZ.
1.121 "Initial Distribution Date" means with respect to holders of Allowed
Class 1, 2A, 2B, 3, 4, 5, and 6 Claims, a date that is not later than
thirty (30) days after the Effective Date.
1.122 "Insolvent Insurer PD Rights" means all of the Debtors' rights and
claims as of the Effective Date to coverage and causes of action and
choses in action for accrued or future coverage claims, for demands,
or for other entitlements to insurance proceeds from any insolvent
insurance company, whether domestic or foreign, and whether in
receivership, liquidation, rehabilitation, run-off, scheme of
arrangement or any other form of proceeding, as well as the rights to
any payments of initial dividends, or scheme payments from the
Receiver, Liquidator or Scheme Administrator of any insolvent
insurance company and the rights to any supplemental dividends or
supplemental scheme payments that may be declared from time to time,
on account of FB Asbestos Property Damage Claims.
1.123 "Insolvent Insurer PI Rights" means all of the Debtors' rights and
claims as of the Effective Date to coverage and causes of action and
choses in action for accrued or future coverage claims, for demands,
or for other entitlements to insurance proceeds from any insolvent
insurance company, whether domestic or foreign, and whether in
receivership, liquidation, rehabilitation, run-off, scheme of
arrangement or any other form of proceeding, as well as the rights to
any payments of initial dividends, or scheme payments from the
Receiver, Liquidator or Scheme Administrator of any insolvent
insurance company and the rights to any supplemental dividends or
supplemental scheme payments that may be declared from time to time,
on account of Asbestos Personal Injury Claims.
1.124 "Insurance Guarantee Fund PD Rights" means all of the Debtors'
rights, and claims to coverage and causes of action and choses in
action for accrued or future coverage claims, for demands, or for
other entitlements to payment (whether asserted on their own behalf
or on behalf of others) from any state insurance guaranty
association, arising under, or in connection with, any state
insurance guaranty association statutes (including, without
limitation, those statutes under which claims have been made
previously by Debtors) on account of FB Asbestos Property Damage
Claims.
1.125 "Insurance Guarantee Fund PI Rights" means all of the Debtors'
rights, and claims to coverage and causes of action and choses in
action for accrued or future coverage claims, for demands, or for
other entitlements to payment (whether asserted on their own behalf
or on behalf of others) from any state insurance guaranty
association, arising under, or in connection with, any state
insurance guaranty association statutes (including, without
limitation, those statutes under which claims have been made
previously by Debtors) on account of Asbestos Personal Injury Claims.
1.126 "Intercompany Claim" means any Claim, including, without limitation,
any Administrative Claim, by a Debtor against another Debtor (but
excluding the Claims set forth on Schedule XIV, as it may be filed or
amended at least five (5) Business Days prior to the Objection
Deadline, which shall be classified and treated as set forth in
Schedule XIV).
1.127 "Interested Party" means all parties listed on Schedule IX, to be
filed no later than the filing of the Disclosure Statement, as it may
be amended at least five (5) Business Days prior to the Objection
Deadline.
1.128 "Interests" means, collectively, (i) the OCD Interests, (ii) the
Subsidiary Interests and (iii) the legal, equitable, contractual or
other rights of any Person to acquire or receive any of the
foregoing.
1.129 "IPM" means IPM, Inc., a Delaware corporation.
1.130 "IRC" means the Internal Revenue Code of 1986, as amended.
1.131 "IRS" means the United States Internal Revenue Service.
1.132 "Litigation Trust" means the trust that is created pursuant to the
Plan and the Litigation Trust Agreement to be administered by the
Litigation Trustee, all as more specifically set forth in Section 5.7
of the Plan and the Litigation Trust Agreement.
1.133 "Litigation Trust Agreement" means the trust agreement that is to
govern the Litigation Trust, in substantially the form of Exhibit C,
to be filed no later than five (5) Business Days prior to the
Disclosure Statement Hearing, as it may be amended up to five (5)
Business Days prior to the Objection Deadline.
1.134 "Litigation Trust Assets" means those rights, claims or other assets
to be transferred to and owned by the Litigation Trust pursuant to
Section 5.8 of the Plan for the benefit of each of Classes 4, 5, 6,
and 7, which are comprised of (i) the Litigation Trust Initial
Deposit, (ii) the Potential Tax Refunds, (iii) all of the Debtors'
rights and standing to object to, litigate, settle and otherwise
resolve (a) the Tobacco Causes of Action, (b) the Avoidance Actions
and (c) the Material Rights of Action, and (iv) any and all proceeds
of the foregoing and interest actually earned. Litigation Trust
Assets shall not include the FB Reversions.
1.135 "Litigation Trust Expenses" means all costs and expenses associated
with the administration of the Litigation Trust, including those
rights, obligations and duties described in Section 5.8 of the Plan
and in accordance with the Litigation Trust Agreement.
1.136 "Litigation Trust Initial Deposit" means the distribution, in the
amount of $500,000, or such other amount upon which the Plan
Proponents may agree no later than five (5) Business Days prior to
the Objection Deadline, to be made by the Debtors to the Litigation
Trust as set forth in Section 5.8 of the Plan.
1.137 "Litigation Trust Recoveries" means (i) any and all proceeds received
by the Litigation Trust from (a) the Potential Tax Refunds, (b) the
Tobacco Causes of Action, (c) the Avoidance Actions and (d) the
Material Rights of Action, and (ii) interest actually earned with
respect to the foregoing and the Litigation Trust Initial Deposit.
1.138 "Litigation Trust Reimbursement Obligation" means the obligation of
the Litigation Trust to pay to Reorganized OCD any and all Litigation
Trust Recoveries until such time as the Litigation Trust Initial
Deposit plus interest at the rate of 5% per annum, or such other rate
upon which the Plan Proponents may agree no later than five (5)
Business Days prior to the Objection Deadline, has been repaid in
full.
1.139 "Litigation Trustee" means the trustee of the Litigation Trust
appointed pursuant to Section 5.8 of the Plan.
1.140 "Management Arrangements" means, collectively, the management
compensation and benefit plans as set forth in Exhibit F, to be filed
no later than five (5) Business Days prior to the Disclosure
Statement Hearing, as it may be amended up to five (5) Business Days
prior to the Objection Deadline.
1.141 "Material Rights of Action" means all rights, claims, causes of
action, suits or proceedings accruing to the Debtors or any assets or
other property of the Debtors pursuant to the Bankruptcy Code or
pursuant to any statute or legal theory which, if determined in favor
of the Debtors or the Estates, would reasonably be expected to result
in a recovery in excess of $200,000, but excluding Commercial Claims.
1.142 "Net Available Distributable Shares" means the amount of
Distributable Shares remaining after distribution of (i) the FB
Sub-Account Settlement Payment to the FB-Sub Account, and (ii) if
Class 4 accepts the Plan, the Guarantee Settlement Payment for the
benefit of holders of Allowed Class 4 Claims in accordance with
Section 3.3(b)(i).
1.143 "Net Available Senior Notes Amount" means the Senior Notes Amount
less (i) the portion of the FB Sub-Account Settlement Payment to be
paid in Senior Notes to the FB Sub-Account and (ii) if Class 4
accepts the Plan, that portion of the Guarantee Settlement Value
which is to be paid in Senior Notes for the benefit of holders of
Allowed Class 4 Claims pursuant to Section 3.3(b)(i).
1.144 "New OCD Common Stock" means the common stock, par value $[0.10] per
share, of Reorganized OCD.
1.145 [Intentionally Omitted]
1.146 "New OCD Securities" means the New OCD Common Stock and the Senior
Notes to be issued by Reorganized OCD and distributed pursuant to the
Plan.
1.147 "Non-Debtor Subsidiaries" means all direct and indirect Subsidiaries
of OCD that are not Subsidiary Debtors.
1.148 "NSP" means the National Settlement Program pursuant to which OCD and
Fibreboard entered into agreements with certain law firms prior to
the Petition Date for the purpose of attempting to settle OC Asbestos
Personal Injury Claims and FB Asbestos Personal Injury Claims,
respectively.
1.149 "NSP Agreements" means the settlement agreements entered into between
OCD and/or Fibreboard and each law firm participating in the NSP.
1.150 "Objection Deadline" means the date set forth in the Order of the
Bankruptcy Court or the District Court by which a creditor or
interest holder or other party in interest must file an objection to
confirmation of the Plan.
1.151 "OC" means, collectively, OCD and its Subsidiaries.
1.152 "OC Asbestos Personal Injury Claim" means any present or future right
to payment, claim, remedy, liability or Demand against any OC Person
for death, bodily injury, or other personal damages (whether
physical, emotional or otherwise), whether or not such right, claim,
remedy, liability or Demand is reduced to judgment, liquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured, whether or not the facts of or
legal basis for such right, claim, remedy, liability or Demand are
known or unknown, under any theory of law, equity, admiralty, or
otherwise, to the extent caused or allegedly caused, directly or
indirectly, by the presence of, or exposure to asbestos or
asbestos-containing products for which any OC Person may be legally
liable, including, without limitation, the presence of, or exposure
to, asbestos or asbestos-containing products that were manufactured,
installed, fabricated, sold, supplied, produced, distributed,
released, or in any way at any time marketed or disposed of by any OC
Person, including, without express or implied limitation, any right,
claim, remedy, liability or Demand for compensatory damages (such as
loss of consortium, wrongful death, survivorship, proximate,
consequential, general and special damages) and including punitive
damages. OC Asbestos Personal Injury Claims (i) include OC Indirect
Asbestos PI Trust Claims and Unpaid OC Resolved Asbestos Personal
Injury Claims, but (ii) exclude OC Resolved Asbestos Personal Injury
Claims, OC Asbestos Property Damage Claims, OC Indirect Asbestos
Property Damage Claims, workers' compensation claims, FB Asbestos
Personal Injury Claims, FB Indirect Asbestos PI Trust Claims, FB
Asbestos Property Damage Claims, and FB Indirect Asbestos Property
Damage Claims.
1.153 "OC Asbestos Personal Injury Liability Insurance Assets" means rights
to coverage for OC Asbestos Personal Injury Claims and OC Resolved
Asbestos Personal Injury Claims under excess liability insurance
policies issued to OCD and identified in Schedule XVII, to be filed
at least five (5) Business Days prior to the Objection Deadline,
including, without limitation, (i) rights under such policies,
whether against the insurers that issued such policies and their
successors and assigns, or, with respect to any insolvent insurers,
against their liquidators and/or the state insurance guaranty funds
that bear responsibility with respect to them; and (ii) the right, on
behalf of the Debtors, to give a full release of the insurance rights
of the Debtors under any such policies, provided that a reciprocal
release of the Debtors in connection with said policies is given in
exchange by the insurer or other released insurance entity and
further provided that any such release shall not encompass rights
with respect to coverage for workers' compensation claims.
1.154 "OC Asbestos Property Damage Claim" means any present or future right
to payment, claim, remedy or liability against, or debt or obligation
of, any OC Person, whether or not the facts or legal basis for such
right, claim, remedy, liability, debt or obligation are known or
unknown, under any theory of law, equity, admiralty, or otherwise
for, relating to, or arising by reason of, directly or indirectly,
damage to property, including, without limitation, diminution in the
value thereof, or environmental damage or economic loss related
thereto, caused or allegedly caused, directly or indirectly, in whole
or in part by the presence in buildings or other systems or
structures of asbestos or asbestos-containing products that were
manufactured, installed, fabricated, sold, supplied, produced,
distributed, released or in any way at any time marketed or disposed
of by any OC Person prior to the Petition Date, or for which any OC
Person is liable due to the acts or omissions of any OC Person,
including, without express or implied limitation, any right, claim,
remedy, liability against, or debt or obligation for compensatory
damages (such as proximate, consequential, general and special
damages) and including punitive damages. OC Asbestos Property Damage
Claims include OC Indirect Asbestos Property Damage Claims, but do
not include FB Asbestos Property Damage Claims.
1.155 "OCD" means Owens Corning, a Delaware corporation.
1.156 "OCD Insurance Escrow" means the approximately $59 million of
escrowed insurance proceeds received from certain of OCD's excess
insurance carriers which are reflected in OC's consolidated balance
sheet as restricted assets, together with all accrued earnings
thereon.
1.157 "OCD Interests" means, (i) collectively, all Existing OCD Common
Stock, Existing OCD Preferred Stock and Existing OCD Options,
together with any options, warrants, conversion rights, rights of
first refusal or other rights, contractual, equitable or otherwise,
to acquire or receive any Existing OCD Common Stock, Existing OCD
Preferred Stock, Existing OCD Options or other capital stock in OCD,
or any contract subscription, commitment or agreement pursuant to
which any Person was or could have been entitled to receive any share
of the capital stock of OCD, or any such option, warrant, conversion
right, right of first refusal or other right (including, without
limitation, any rights of any 401(k) plan or the interest of any
participant therein), in each case issued or entered into by, or
otherwise the obligation of, OCD or another Debtor; and (ii) all
shares of Preferred Stock and Class A Common Stock of Integrex,
together with any options, warrants, conversion rights, rights of
first refusal or other rights, contractual, equitable or otherwise,
relating to such stock, held by Blue Ridge Investments, L.L.C. or its
successors and assigns.
1.158 "OCD Restricted Cash" means the amount of administrative deposits by
OCD in settlement accounts (together with earnings therein) in
respect of OC Asbestos Personal Injury Claims to facilitate claims
processing under the NSP as of five (5) Business Days prior to the
Effective Date.
1.159 "OCD Reversions" means such amounts as may from time to time be
released from the settlement accounts in respect of OC Asbestos
Personal Injury Claims to facilitate claims processing under the NSP
and returned to OCD.
1.160 "OC Indirect Asbestos PI Trust Claim" means any present or future
right to payment, claim, remedy, liability, or Demand against any OC
Person, whether or not such right, claim, remedy, liability or Demand
is reduced to judgment, liquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, whether or not the facts of or legal basis for such right,
claim, remedy, liability, or Demand are known or unknown, under any
theory of law, equity, admiralty, or otherwise, that is (i) asserted
by (A) any Person (other than (I) an OC Person or (II) Related
Persons of the Debtors or Reorganized Debtors entitled to
indemnification pursuant to Section 7.5 of the Plan) who has been, is
or may be a defendant in an action seeking damages for death, bodily
injury or other personal damages (whether physical, emotional or
otherwise), to the extent caused or allegedly caused, directly or
indirectly, by the presence of, or exposure to asbestos or
asbestos-containing products for which any OC Person may be legally
liable, including, without limitation, the presence of, or exposure
to, asbestos or asbestos-containing products that were manufactured,
installed, fabricated, sold, supplied, produced, distributed,
released, or in any way at any time marketed or disposed of by any OC
Person, or (B) any assignee or transferee of such Person, and (ii) on
account of alleged liability of any OC Person for reimbursement,
contribution, subrogation or indemnification of any portion of any
damages such Person has paid or may pay to the plaintiff in such
action.
1.161 "OC Indirect Asbestos Property Damage Claim" means any present or
future right to payment, claim, remedy or liability against, or debt
or obligation of, any OC Person, whether or not the facts of or legal
basis for such right, claim, remedy, liability, debt or obligation
are known or unknown, under any theory of law, equity, admiralty, or
otherwise that is (i) asserted by (a) any Person (other than (I) a OC
Person or (II) a Related Person of the Debtors or Reorganized Debtors
entitled to indemnification pursuant to Section 7.5 of the Plan) who
has been, is, or may be a defendant in an action seeking damages for,
relating to, or arising by reason of, directly or indirectly, damage
to property, including without limitation, diminution in the value
thereof, or environmental damage or economic loss related thereto,
caused or allegedly caused, directly or indirectly, in whole or in
part by the presence in buildings or other systems or structures of
asbestos or asbestos-containing products that were manufactured,
installed, fabricated, sold, supplied, produced, distributed,
released or in any way at any time marketed or disposed of by any OC
Person, prior to the Petition Date, or for which any OC Person is
otherwise liable due to the acts or omissions of any OC Person or (b)
any assignee or transferee of such Person, and (ii) on account of
alleged liability of any OC Person for reimbursement, contribution,
subrogation or indemnification of any portion of any damages such
Person has paid or may pay to the plaintiff in such action.
1.162 "OC Person" means each of (i) OCD and its direct or indirect
Subsidiaries, (ii) OCD's and its direct or indirect Subsidiaries'
respective predecessors in interest, but solely to the extent listed
on Schedule VIII, to be filed no later than five (5) Business Days
prior to the Disclosure Statement Hearing, as it may be amended up to
five (5) Business Days prior to the Objection Deadline, (iii) OCD's
and its direct or indirect Subsidiaries' respective successors in
interest, but solely to the extent they either (a) are listed on
Schedule VIII, or (b) are post-Effective Date successors in interest,
(iv) OCD's and its direct or indirect Subsidiaries' respective
controlled Affiliates, but solely to the extent listed on Schedule
VIII, and (v) the respective employees, directors or officers of the
Persons identified in clauses (i), (ii), (iii) and (iv) of this
Section 1.162, acting in such capacity.
1.163 "OC Resolved Asbestos Personal Injury Claim" means an OC Asbestos
Personal Injury Claim with respect to which (i) the holder of such
Claim (a) is represented by an attorney of record who has entered
into an enforceable NSP Agreement with OC and (b) has satisfied all
of the preconditions to payment under the applicable NSP Agreement
prior to the Petition Date (including, without limitation, the
submission of information about the Claim holder's exposure and
injury as well as the delivery of a properly executed release
relating to such Claim) and (ii) such Claims are eligible to be paid
from settlement accounts in respect of OC Asbestos Personal Injury
Claims, to facilitate claims processing under the NSP, including
settlement accounts maintained by (a) Baron & Budd, P.C., (b) Foster
& Sear, LLP, (c) Waters & Kraus, LLP, or (d) Weitz & Luxenberg, and
such monies are available to pay such claims and have not been or are
not avoided and recovered for the benefit of the Debtors' Estates.
1.164 "OC Sub-Account" means the sub-account of the Asbestos Personal
Injury Trust established for purposes of assuming any and all
liabilities and responsibility for OC Asbestos Personal Injury Claims
and making payments in respect of such Claims in accordance with the
Plan and the Asbestos Personal Injury Trust Distribution Procedures.
1.165 "Other Priority Claims" means all Claims entitled to priority
pursuant to Section 507(a) of the Bankruptcy Code other than DIP
Facility Claims, Administrative Claims or Priority Tax Claims.
1.166 "Other Secured Claims" means all Claims secured by a valid
Encumbrance in or on any of the Debtors' property, which is not void
or voidable under the Bankruptcy Code or any other applicable law, to
the extent of the value of the Claim holder's interest in the
Debtors' property, as determined pursuant to Section 506 of the
Bankruptcy Code. Other Secured Claims do not include Other Secured
Tax Claims.
1.167 "Other Secured Tax Claims" means all Claims secured by a valid
Encumbrance in or on any of the Debtors' property, (i) which is not
void or voidable under the Bankruptcy Code or any other applicable
law, to the extent of the value of the Claim holder's interest in the
Debtors' property, as determined pursuant to Section 506 of the
Bankruptcy Code, and (ii) which absent such Claim's secured status,
would be entitled to priority in right of payment under Section
507(a)(8) of the Bankruptcy Code.
1.168 "Person" means an individual, corporation, partnership, association,
joint stock company, joint venture, limited liability company,
limited liability partnership, trust, estate, unincorporated
organization or other entity, or any government, governmental agency
or any subdivision, department or other instrumentality thereof.
1.169 "Petition Date" means October 5, 2000, the date of the Filing.
1.170 "Plan" means this Chapter 11 reorganization plan and all exhibits and
schedules annexed hereto or referenced herein, as the same may be
amended, modified or supplemented from time to time.
1.171 "Plan Proponents" means the Debtors, the Asbestos Claimants'
Committee, and the Future Claimants' Representative, as co-proponents
of the Plan.
1.172 "PLR" means the private letter ruling received by the Debtors from
the IRS on July 23, 2002, as the same may be amended, modified or
supplemented from time to time.
1.173 "Potential Tax Refunds" means the federal income tax refunds, if any,
recovered by the Reorganized Debtors pursuant to the Proposed
Asbestos-Related Tax Legislation.
1.174 "Pre-petition Bond Indentures" means collectively, (i) the Indenture,
dated as of May 5, 1997, between OCD and The Bank of New York, as
trustee, pursuant to which OCD issued the $250 Million Notes, $400
Million Debenture and the $550 Million Term Notes; (ii) the
Indenture, dated as of May 21, 1992, between OCD and The Bank of New
York, as trustee, pursuant to which OCD issued the $330 Million High
Coupon Debentures; and (iii) the Underwriting Agreement, dated as of
November 15, 1985, between OCD, Dresdner Bank AG and the other banks
listed therein, and the Agreement for the Listing, the Trusteeship
and the Paying Agency, dated as of November 15, 1985, between OCD and
Dresdner Bank AG, pursuant to which OCD issued the $130 Million DEM
Bearer Bonds.
1.175 "Pre-petition Bonds" means, collectively, (i) the $550 Million Term
Notes, of which $300 million in aggregate principal amount was
outstanding in the First Series as of the Petition Date and $250
million in aggregate principal amount was outstanding in the Second
Series as of the Petition Date; (ii) the $400 Million Debentures, of
which $400 million in aggregate principal amount was outstanding as
of the Petition Date; (iii) the $250 Million Notes, of which $250
million in aggregate principal amount was outstanding as of the
Petition Date; (iv) the $330 Million High Coupon Debentures,
consisting of the 8.875% Debentures, of which $40 million in
aggregate principal amount was outstanding as of the Petition Date,
and the 9.375% Debentures, of which $7 million in aggregate principal
amount was outstanding as of the Petition Date; and (v) the $130
Million DEM Bearer Bonds, of which $60 million in aggregate principal
amount was outstanding as of the Petition Date.
1.176 "Pre-petition Indenture Trustees" means collectively, the Persons
serving from time to time as trustees under the Pre-petition Bond
Indentures, pursuant to the terms of the applicable Pre-Petition Bond
Indentures.
1.177 "Priority Tax Claim" means an unsecured Claim asserted by a federal
or state governmental authority for taxes specified in Section
507(a)(8) of the Bankruptcy Code.
1.178 "Pro Rata" when used with respect to the treatment of a Claim, means
the proportion that the Face Amount of a Claim in a particular Class
bears to the aggregate Face Amount of all Claims (including Disputed
Claims) in such Class.
1.179 "Proof of Claim" means the proof of claim that must be filed by a
holder of a Claim by the date(s), if any, designated by the
Bankruptcy Court as the last date(s) for filing proofs of claims or
interests against the Debtors.
1.180 "Proposed Asbestos-Related Tax Legislation" means (i) the bill
denominated as HR 1412 (also known as the Asbestos Tax Fairness Act)
introduced in the United States House of Representatives on April 4,
2001; (ii) the companion bill S 1048, identical to HR 1412,
introduced in the United States Senate on June 14, 2001; and (iii)
any substantially similar federal tax legislation.
1.181 "Protected Party" means any of the following: (i) any Debtor and its
Related Persons, but solely to the extent set forth on Schedule X, to
be filed no later than five (5) Business Days prior to the Disclosure
Statement Hearing, as it may be amended up to five (5) Business Days
prior to the Objection Deadline; (ii) any Reorganized Debtor and its
Related Persons, but solely to the extent set forth on Schedule X;
(iii) any Person that, pursuant to the Plan or after the Effective
Date becomes a direct or indirect transferee of, or successor to, any
assets of any of the Debtors, the Reorganized Debtors, or the
Asbestos Personal Injury Trust (but only to the extent that liability
is asserted to exist by reason of such Person's becoming or being
such a transferee or successor); (iv) any Person that, pursuant to
the Plan or after the Effective Date, makes a loan to any of the
Reorganized Debtors or the Asbestos Personal Injury Trust or to a
successor to, or transferee of, any assets of any of the Debtors, the
Reorganized Debtors, or the Asbestos Personal Injury Trust (but only
to the extent that liability is asserted to exist by reason of such
Person's becoming or being such a lender or to the extent any pledge
of assets made in connection with such a loan is sought to be upset
or impaired); (v) any Person to the extent such Person is alleged to
be directly or indirectly liable for the conduct of, Claims against,
or Demands on any of the Debtors, the Reorganized Debtors, or the
Asbestos Personal Injury Trust on account of Asbestos Personal Injury
Claims by reason of one or more of the following: (a) such Person's
ownership of a financial interest in any of the Debtors or
Reorganized Debtors, a past or present Affiliate of any of the
Debtors or the Reorganized Debtors, or predecessor in interest of any
of the Debtors or the Reorganized Debtors, but solely to the extent
set forth on Schedule X, (b) such Person's involvement in the
management of any of the Debtors or the Reorganized Debtors or any
predecessor in interest of any of the Debtors or the Reorganized
Debtors, but solely to the extent set forth on Schedule X, or (c)
such Person's service as an officer, director, or employee of any of
the Debtors, the Reorganized Debtors or any Interested Party; (vi)
any past, present or future purchaser or other transferee of the
assets or business, in whole or in part, or all of the outstanding
capital stock, of any one or more of the Debtors, Reorganized
Debtors, or past or present Affiliates of the Debtors or Reorganized
Debtors, however effectuated, by operation of law or otherwise, and
any Related Person of such purchaser or transferee, including such
Persons set forth in Schedule VI, to be filed no later than five (5)
Business Days prior to the Disclosure Statement Hearing, as it may be
amended up to five (5) Business days prior to the Objection Deadline,
but only to the extent that liability is asserted to exist by reason
of such Person becoming or being such a purchaser, transferee or
successor; (vii) the Hartford Entities, to the extent set forth in
the Hartford Settlement Agreement, with respect to the liability for
any Asbestos Personal Injury Claims that arise out of or in
connection with the Hartford Policies; and (viii) such other
insurance companies, including, without limitation, those insurance
companies to the extent set forth on Schedule VII, to be filed no
later than five (5) Business Days prior to the Disclosure Statement
Hearing, as it may be amended up to five (5) Business days prior to
the Objection Deadline, and with respect to liability for any
Asbestos Personal Injury Claims, but only if and to the extent that
any such insurance company has entered into a settlement agreement
with one or more of the Debtors with respect to liability for
Asbestos Personal Injury Claims prior to the Effective Date, or such
later date to which the Plan Proponents may agree, and such agreement
expressly provides for the payment by any such Person of insurance
proceeds and either the comprehensive release of such Person's
further liability for Asbestos Personal Injury Claims or such
Person's entitlement to the protection of the Asbestos Permanent
Channeling Injunction in the Chapter 11 Cases as a Protected Party.
1.182 "Quarterly Distribution Date" means the calendar quarters ending in
March, June, September and December, on which dates the Reorganized
Debtors shall make payments and distributions from the reserve
established for Disputed Claims to each holder of a Disputed Claim
that has become an Allowed Claim during the preceding calendar
quarter.
1.183 "Record Date" means the first Business Day following the Confirmation
Date.
1.184 "Reference Order" means the Order (i) Referring Certain Cases to the
Bankruptcy Court and (ii) allocating responsibilities between the
District Court and the Bankruptcy Court, entered by the District
Court on December 10, 2001, as amended and modified by the Case
Management Order entered December 24, 2002, and as it may be
subsequently be modified or amended.
1.185 "Reinstatement" means (i) leaving unaltered the legal, equitable, and
contractual rights to which a Claim entitles the holder of such Claim
so as to leave such Claim unimpaired in accordance with Section 1124
of the Bankruptcy Code or (ii) 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 (a) 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; (b)
reinstating the maturity of such Claim as such maturity existed
before the default; (c) 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 (d)
not otherwise altering the legal, equitable, or contractual rights to
which such Claim entitles the holder of such Claim; 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, without limitation, financial
coverage ratios, negative pledge covenants, covenants or restrictions
on merger or consolidation, and affirmative covenants regarding
corporate existence, 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 to accomplish Reinstatement.
1.186 "Related Persons" means, with respect to any Person, such Person's
predecessors, successors and assigns (whether by operation of law or
otherwise) and their respective present and former Affiliates and
each of their respective present and former members, partners,
equity-holders, officers, directors, employees, representatives,
advisors, attorneys, agents and professionals, acting in such
capacity, and any Person claiming by or through any of them.
1.187 "Released Actions" means all Claims, obligations, suits, judgments,
damages, debts, rights, causes of action and liabilities, and all
Interests and rights of an equity security holder, whatsoever,
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
circumstance taking place or existing on or prior to the Effective
Date in connection with or related to the Debtors and Reorganized
Debtors and their respective Estates, the Chapter 11 Cases or the
Plan, except for the (i) Tobacco Causes of Action, (ii) the Avoidance
Actions listed on Schedule XV, to be filed no later than the filing
of the Disclosure Statement, as it may be amended up to five (5)
Business Days prior to the Objection Deadline, (iii) the claims
against CSFB and/or the Bank Holders in the Bank Holders Action, (iv)
the Material Rights of Action listed on Schedule XV, and (v) Asbestos
Personal Injury Claims. Released Actions includes the release of all
Claims, obligations, suits, judgments, damages, debts, rights, causes
of action and liabilities against the Debtors and the Non-Debtor
Subsidiaries arising from the 1997 Credit Agreement or the guarantees
of the 1997 Credit Agreement.
1.188 "Released Parties" means (i) the Unsecured Creditors' Committee and
its present and former members, representatives, advisors, attorneys,
agents and professionals, acting in such capacity, (ii) the Asbestos
Claimants' Committee and its present and former members,
representatives, advisors, attorneys, agents and professionals,
acting in such capacity, (iii) the Future Claimants' Representative
and his present and former representatives, advisors, attorneys,
agents and professionals, acting in such capacity, (iv) the
respective Related Persons of the Debtors and the Reorganized Debtors
and their respective Estates as of the Petition Date and thereafter
and (v) the present and former officers and directors of the Debtors
and Reorganized Debtors; except in each case for the Persons listed
on Schedule III, to be filed no later than the filing of the
Disclosure Statement, as it may be amended up to five (5) Business
days prior to the Objection Deadline, against which Claims,
obligations, suits, judgments, damages, Demands, debts, rights,
causes of action, liabilities, Interests and other rights of an
equity security holder shall not be released under the Plan.
1.189 "Reorganized Debtors" means, collectively, Reorganized OCD and the
Reorganized Subsidiary Debtors.
1.190 "Reorganized OCD" means reorganized OCD or its successor, on and
after the Effective Date.
1.191 "Reorganized Subsidiary Debtors" means the reorganized Subsidiary
Debtors and their respective successors, on and after the Effective
Date.
1.192 "Resolved Asbestos Personal Injury Claims" means OC Resolved Asbestos
Personal Injury Claims and FB Resolved Asbestos Personal Injury
Claims.
1.193 "Restricted Cash" means, collectively, OCD Restricted Cash and FB
Restricted Cash.
1.194 "Restructuring Transactions" means those transactions or other actions
(including without limitation, mergers, consolidations, restructures,
dispositions, liquidations, or dissolutions) that one or more
applicable Reorganized Debtors may enter into on or prior to, or as
soon as practicable after, the Effective Date outside the ordinary
course of business of such Reorganized Debtors in accordance with
Section 5.6 hereof, including, without limitation, actions to effect a
corporate restructuring of their respective businesses, to simplify
the overall corporate structure of the Reorganized Debtors or to
reincorporate certain of the Subsidiary Debtors under the laws of
jurisdictions other than the laws of which the applicable Subsidiary
Debtors are presently incorporated.
1.195 "Senior Notes" means such unsubordinated obligations for borrowed
money as any of the Reorganized Debtors may issue or incur on or
about the Effective Date in connection with the Plan.
1.196 "Senior Notes Amount" means the total principal amount of the Senior
Notes, the amount of which shall be set forth in Schedule XII and
Schedule XIII, to be filed no later than the filing of the Disclosure
Statement, as they may be amended up to five (5) Business Days prior
to the Disclosure Statement Hearing.
1.197 "SOFAS" means the Schedules and Statements of Financial Affairs filed
in the Chapter 11 Cases by OCD and each of the Subsidiary Debtors, as
amended from time to time.
1.198 "Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the
total voting power of shares of stock (or equivalent ownership or
controlling interest) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more other Persons controlled by
such Person or a combination thereof.
1.199 "Subsidiary Debtors" means the direct and indirect Subsidiaries of
OCD that are set forth in Schedule I hereto and such other
Subsidiaries of OCD as may file for protection under Chapter 11 of
the Bankruptcy Code subsequent to the date hereof and prior to the
Confirmation Date.
1.200 "Subsidiary Interests" means, collectively, the issued and
outstanding ownership interests in the Subsidiary Debtors, together
with any options, warrants, conversion rights, rights of first
refusal or other rights, contractual, equitable or otherwise, to
acquire or receive any ownership interests in the Subsidiary Debtors,
or any contract subscription, commitment or agreement pursuant to
which any Person was or could have been entitled to receive any share
of any ownership interests in the Subsidiary Debtors, or any such
option, warrant, conversion right, right of first refusal or other
right (including, without limitation, any rights of any 401(k) plan
or the interest of any participant therein), in each case issued or
entered into by, or otherwise the obligation of, the applicable
Subsidiary Debtor; in each case, owned beneficially and of record,
directly or indirectly, by OCD.
1.201 "TAC" means the Trustees' Advisory Committee established under the
Asbestos Personal Injury Trust Agreement.
1.202 "Tobacco Causes of Action" means any and all claims by OCD and
Fibreboard for restitution/unjust enrichment, fraud, and violations
of state antitrust law against tobacco companies to obtain payment of
monetary damages (including punitive damages) for payments made by
OCD and Fibreboard to asbestos claimants who developed smoking-
related diseases, including, without limitation, (i) the action
brought by OCD in the Circuit Court of Jefferson County, Mississippi,
styled Ezell Thomas, et al. v. R.J. Reynolds Tobacco Company, et al.
and Owens Corning v. RJ Reynolds Tobacco Company , Docket No.
96-0065; and (ii) the lawsuit brought by OCD and Fibreboard in the
Superior Court of California, County of Alameda, styled Fibreboard
Corp., et al. v. R.J. Reynolds Tobacco Company, et al., Case No.
791919-8.
1.203 "Unclassified Claims" means the DIP Facility Claims, Administrative
Claims and Priority Tax Claims, collectively.
1.204 "Unimpaired" means, when used with reference to a Claim, Class or
Interest, a Claim, Class or Interest that is not impaired within the
meaning of Section 1124 of the Bankruptcy Code.
1.205 "Unpaid FB Resolved Asbestos Personal Injury Claim" means an FB
Asbestos Personal Injury Claim (i) with respect to which the holder
of such Claim (a) is represented by an attorney of record who has
entered into an enforceable NSP Agreement with Fibreboard, and (b)
has satisfied all of the preconditions to payment under the
applicable NSP Agreement prior to the Petition Date (including,
without limitation, the submission of information about the Claim
holder's exposure and injury as well as the delivery of a properly
executed release relating to such Claim), and (ii) to the extent such
Claim has not been, and will not be, paid from settlement accounts in
respect of FB Asbestos Personal Injury Claims, to facilitate claims
processing under the NSP, including settlement accounts maintained by
(a) Baron & Budd, P.C., (b) Foster & Sear, LLP, (c) Waters & Kraus,
LLP, or (d) Weitz & Luxenberg. 1.206 "Unpaid OC Resolved Asbestos
Personal Injury Claim" means an OC Asbestos Personal Injury Claim (i)
with respect to which the holder of such Claim (a) is represented by
an attorney of record who has entered into an enforceable NSP
Agreement with OC, and (b) has satisfied all of the preconditions to
payment under the applicable NSP Agreement prior to the Petition Date
(including, without limitation, the submission of information about
the Claim holder's exposure and injury as well as the delivery of a
properly executed release relating to such Claim), and (ii) to the
extent such Claim has not been, and will not be, paid from settlement
accounts in respect of OC Asbestos Personal Injury Claims, to
facilitate claims processing under the NSP, including settlement
accounts maintained by (a) Baron & Budd, P.C., (b) Foster & Sear,
LLP, (c) Waters & Kraus, LLP, or (d) Weitz & Luxenberg.
1.207 "Unsecured Creditors' Committee" means the official creditors'
committee representing general unsecured creditors, which was
appointed pursuant to Section 1102(a) of the Bankruptcy Code by the
United States Trustee for the District of Delaware on October 23,
2000 and which includes the unofficial sub-committee representing the
Bank Holders and the unofficial sub-committee representing the
Bondholders and trade creditors, each of which sub-committees is
represented by separate counsel and financial advisors.
1.208 "Voting Deadline" means the date set forth in the Voting Procedures
Order by which a creditor or interest holder must deliver a ballot
voting to accept or reject the Plan.
1.209 "Voting Procedures" means the detailed instructions and procedures
relating to the solicitation of votes with respect to the Plan.
1.210 "Voting Procedures Order" means the order of the Bankruptcy Court or
District Court approving the Voting Procedures.
C. Rules of Interpretation
For purposes of the Plan (i) any reference in the Plan to a contract,
instrument, release, indenture or other agreement or document being in a
particular form or on particular terms and conditions means that such document
shall be substantially in such form or substantially on such terms and
conditions; (ii) any reference in the Plan to an existing document or exhibit
filed or to be filed means such document or exhibit as it may have been or may
be amended, modified or supplemented; (iii) unless otherwise specified, all
references in the Plan to sections, articles, schedules and exhibits are
references to sections, articles, schedules and exhibits of or to the Plan; (iv)
the words "herein" and "hereto" refer to the Plan in its entirety rather than to
a particular portion of the Plan; (v) 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 (vi) the rules of
construction set forth in Section 102 of the Bankruptcy Code and in the
Bankruptcy Rules shall apply.
D. Computation of Time
In computing any period of time prescribed or allowed by the Plan, the
provisions of Federal Rule of Bankruptcy Procedure 9006(a) shall apply.
E. Governing Law
Unless the application of a specific rule of law or procedure is
required by federal law (including the Bankruptcy Code and the Bankruptcy
Rules), or is otherwise expressly provided for, (i) the laws of the State of
Delaware shall govern the construction and implementation of the Plan and any
agreements, documents and instruments executed in connection with the Plan
(unless such agreement, document or instrument shall specify another state's
law) and (ii) the laws of the state of incorporation of each Debtor and
Reorganized Debtor shall govern corporate governance matters with respect to
such Debtor or Reorganized Debtor, in each case without giving effect to the
principles of conflicts of law thereof.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
2.1 Introduction
The Plan is premised upon the substantive consolidation of the
Debtors, as set forth in more detail in Section 6.1 below, for the purposes of
voting, determining which Claims and Interests will be entitled to vote to
accept or reject the Plan, confirmation of the Plan and the resultant
discharge of and cancellation of Claims and Interests and distribution of
assets, interests and other property under the terms herein. Substantive
consolidation under the Plan will not result in the merger of or the transfer
or commingling of any assets of any of the Debtors or Non-Debtor Subsidiaries,
and all assets (whether tangible or intangible) will continue to be owned by
the respective Debtors or Non-Debtor Subsidiaries, as the case may be.
In accordance with Section 1123(a)(1) of the Bankruptcy Code, DIP
Facility Claims, Administrative Claims and Priority Tax Claims have not been
classified, and the respective treatment of such Unclassified Claims is set
forth in Section 3.1 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 is classified in other Classes to the extent that any portion of the Claim
or Interest falls within the description of such other Classes. A Claim is
also placed in a particular Class for the purpose of receiving distributions
pursuant to the Plan only to the extent that such Claim is an Allowed Claim in
that Class and such Claim has not been paid, released or otherwise settled
prior to the Effective Date.
2.2 Classification of Unimpaired Claims
(a) Class 1: Other Priority Claims
Class 1 consists of all Other Priority Claims.
(b) Class 2A: Other Secured Tax Claims
Class 2A consists of all Other Secured Tax Claims.
(c) Class 2B: Other Secured Claims
Class 2B consists of all Other Secured Claims.
2.3 Classification of Impaired Claims and Interests
(a) Class 3: Convenience Claims
Class 3 consists of all Convenience Claims.
(b) Class 4: Bank Holders Claims
Class 4 consists of all Bank Holders Claims.
(c) Class 5: Bondholders Claims
Class 5 consists of all Bondholders Claims.
(d) Class 6: General Unsecured Claims
Class 6 consists of all General Unsecured Claims.
(e) Class 7: OC Asbestos Personal Injury Claims
Class 7 consists of all OC Asbestos Personal Injury
Claims.
(f) Class 8: FB Asbestos Personal Injury Claims
Class 8 consists of all FB Asbestos Personal Injury
Claims.
(g) Class 9: FB Asbestos Property Damage Claims
Class 9 consists of all FB Asbestos Property Damage
Claims.
(h) Class 10: Intercompany Claims
Class 10 consists of all Intercompany Claims.
(i) Class 11: OCD Interests
Class 11 consists of all OCD Interests.
ARTICLE III
TREATMENT OF CLAIMS AND INTERESTS
3.1 Unclassified Claims
(a) DIP Facility Claims
On, or as soon as reasonably practicable after, the latest of (i) the
Initial Distribution Date, (ii) the date on which a DIP Facility Claim becomes
an Allowed DIP Facility Claim or (iii) the date on which a DIP Facility Claim
becomes payable pursuant to any agreement between a Debtor and the holder of
such DIP Facility Claim, each holder of an Allowed DIP Facility Claim shall
receive in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed DIP Facility Claim (x) Cash equal to the unpaid
portion of such Allowed DIP Facility Claim or (y) such other treatment as the
applicable Debtor and such holder shall have agreed in writing.
(b) Administrative Claims
Except as otherwise provided herein and subject to the requirements
hereof, on, or as soon as reasonably practicable after, the latest of (i) the
Initial Distribution Date, (ii) the date on which an Administrative Claim
becomes an Allowed Administrative Claim or (iii) the date on which an
Administrative Claim becomes payable pursuant to any agreement between a Debtor
and the holder of such Administrative Claim, each holder of an 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
other treatment as the applicable Debtor and such holder shall have agreed 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 Cases shall be paid in the ordinary course of business in accordance
with the terms and conditions of any agreements relating thereto.
Holders of Administrative Claims based on liabilities incurred by the
Debtors in the ordinary course of their businesses will not be required to file
or serve any request for payment of such Claims, as such liabilities will be
paid, performed or settled when due in accordance with the terms and conditions
of the particular agreements governing such obligations.
(c) Priority Tax Claims
Except to the extent that a holder of an Allowed Priority Tax Claim
has been paid by the Debtors prior to the Initial Distribution Date or has
agreed in writing to a different treatment, 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, at the sole
discretion of the Debtors, (i) Cash equal to the amount of such Allowed
Priority Tax Claim on the later of the Initial Distribution Date and the date
such Priority Tax Claim becomes an Allowed Claim, or as soon thereafter as is
practicable, (ii) 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 assessment of the tax on which such Claim is based as the
applicable Debtor and such holder shall have agreed in writing, or (iii) such
other treatment as the applicable Debtor and such holder shall have agreed in
writing.
3.2 Unimpaired Classes of Claims
(a) Class 1: Other Priority Claims
(i) Treatment
On, or as soon as reasonably practicable after, the latest of (i) the
Initial Distribution Date, (ii) the date on which such Class 1 Claim becomes an
Allowed Class 1 Claim, or (iii) the date on which such Class 1 Claim becomes due
and payable pursuant to any agreement between a Debtor and a holder of a Class 1
Claim, each holder of an Allowed Class 1 Claim shall receive in full
satisfaction, settlement, release and discharge of and in exchange for such
Allowed Class 1 Claim (a) Cash equal to the unpaid portion of such Allowed Class
1 Claim or (b) such other treatment as the applicable Debtor and such holder
shall have agreed in writing. All Allowed Class 1 Claims which are not by their
terms due and payable on or before the Effective Date will be paid in the
ordinary course of business in accordance with the terms thereof.
(ii) Status
Class 1 Claims are Unimpaired. Holders of the Claims in Class 1 shall
be deemed to have accepted the Plan, and accordingly are not entitled to vote to
accept or reject the Plan.
(b) Class 2A: Other Secured Tax Claims
(i) Treatment
Except to the extent that a holder of an Allowed Class 2A Claim has
been paid by the Debtors prior to the Initial Distribution Date or has agreed
in writing to a different treatment, each holder of an Allowed Class 2A Claim
shall receive in full satisfaction, settlement, release and discharge of and
in exchange for such Allowed Class 2A Claim, at the sole discretion of the
Debtors, (i) Cash equal to the amount of such Allowed Class 2A Claim,
including any interest on such Allowed Class 2A Claims required to be paid
pursuant to Section 506(b) of the Bankruptcy Code, on the later of the Initial
Distribution Date and the date such Class 2A Claim becomes an Allowed Claim,
or as soon thereafter as is practicable, (ii) deferred Cash payments, having a
value as of the Effective Date equal to such Allowed Class 2A Claim, over a
period not exceeding six (6) years after the assessment of the tax on which
such Claim is based as the applicable Debtor and such holder shall have agreed
in writing, or (iii) such other treatment as the applicable Debtor and such
holder shall have agreed in writing. The Debtors' failure to object to any
Class 2A Claim in the Chapter 11 Cases shall be without prejudice to the
rights of the Debtors or the Reorganized Debtors to contest or otherwise
defend against such Claim in the appropriate forum when and if such Claim is
sought to be enforced by the holder of such Claim. Nothing in the Plan or
elsewhere shall preclude the Debtors or Reorganized Debtors from challenging
the validity of any alleged Encumbrance on any asset of a Debtor or
Reorganized Debtor or the value of any collateral.
Each holder of an Allowed Class 2A Claim shall retain the
Encumbrances (or replacement Encumbrances as may be contemplated under
nonbankruptcy law) securing its Allowed Class 2A Claim as of the Effective
Date until full and final payment of such Allowed Class 2A Claim is made as
provided in the Plan, and upon such full and final payment, such Encumbrances
shall be deemed null and void and shall be unenforceable for all purposes.
(ii) Status
Class 2A Claims are Unimpaired. Holders of the Claims in Class 2A
shall be deemed to have accepted the Plan, and accordingly are not entitled to
vote to accept or reject the Plan.
(c) Class 2B: Other Secured Claims
(i) Treatment
On, or as soon as reasonably practicable after, the latest of (i) the
Initial Distribution Date, (ii) the date on which such Class 2B Claim becomes
an Allowed Class 2B Claim or (iii) the date on which such Class 2B Claim
becomes due and payable pursuant to any agreement between a Debtor and the
holder of an Allowed Class 2B Claim, each holder of an Allowed Class 2B Claim
shall receive in full satisfaction, settlement, release and discharge of and
in exchange for such Allowed Class 2B Claim, at the sole discretion of the
Debtors, (a) Cash equal to the unpaid portion of such Allowed Class 2B Claim,
(b) Reinstatement of the legal equitable and contractual rights of the holder
of such Allowed Class 2B Claim, subject to the provisions of Article VII of
the Plan, or (c) such other treatment as the applicable Debtor and such holder
shall have agreed in writing. The Debtors' failure to object to any Class 2B
Claim in the Chapter 11 Cases shall be without prejudice to the rights of the
Debtors or the Reorganized Debtors to contest or otherwise defend against such
Claim in the appropriate forum when and if such Claim is sought to be enforced
by the holder of such Claim. Nothing in the Plan or elsewhere shall preclude
the Debtors or Reorganized Debtors from challenging the validity of any
alleged Encumbrance on any asset of a Debtor or the value of any collateral.
(ii) Status
Class 2B Claims are Unimpaired. Holders of the Claims in Class 2B
shall be deemed to have accepted the Plan, and accordingly are not entitled to
vote to accept or reject the Plan.
3.3 Impaired Classes of Claims and Interests
(a) Class 3: Convenience Claims
(i) Treatment
On, or as soon as reasonably practicable after, the latest of (i) the
Initial Distribution Date, or (ii) the date on which such Class 3 Claim
becomes an Allowed Class 3 Claim, or (iii) the date on which such Class 3
Claim becomes due and payable pursuant to any agreement between a Debtor and a
holder of a Class 3 Claim, each holder of an Allowed Class 3 Claim shall
receive in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed Class 3 Claim (a) Cash equal to the amount of such
Allowed Class 3 Claim or (b) such other treatment as the applicable Debtor and
such holder shall have agreed in writing.
(ii) Election
Any holder of a Claim in Class 6 that desires treatment of such Claim
as a Convenience Claim shall make such election on the Ballot to be provided
to holders of Impaired Claims entitled to vote to accept or reject the Plan
(as specified in Section 4.1 of the Plan) and return such Ballot to the
address specified therein on or before the Voting Deadline. Any election made
after the Voting Deadline shall not be binding on the Debtors unless the
Voting Deadline is expressly waived in writing by the Debtors with respect to
any such Claim.
(iii) Status
Class 3 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 3 shall be
entitled to vote to accept or reject the Plan.
(b) Class 4: Bank Holders Claims
(i) Treatment
In full satisfaction, release and discharge of, and in exchange for,
its Allowed Class 4 Claim, each holder of an Allowed Class 4 Claim shall
receive the following:
On, or as soon as reasonably practicable after, the latest of (i) the
Initial Distribution Date, (ii) the date on which such Class 4 Claim becomes
an Allowed Class 4 Claim, or (iii) the date on which such Class 4 Claim
becomes due and payable pursuant to any agreement between a Debtor and a
holder of a Class 4 Claim, such holder's Pro Rata share of either:
(a) if Class 4 accepts the Plan, (1) the Guarantee Settlement
Payment, and (2) the portion of the Combined Net Distribution Package equal to
the Class 4 Initial Distribution Percentage; or
(b) if Class 4 rejects the Plan, the portion of the Combined
Distribution Package equal to the Class 4 Initial Distribution Percentage.
In addition, on or as soon as reasonably practicable after the Final
Distribution Date, each holder of an Allowed Class 4 claim shall receive its
Pro Rata share of the (i) Cash in an amount equal to the Class 4 Final
Distribution Percentage of Excess Available Cash, (ii) Excess Senior Notes in
an aggregate principal amount equal to the Class 4 Final Distribution
Percentage of the Excess Senior Notes Amount, (iii) shares of New OCD Common
Stock in an aggregate number equal to the Class 4 Final Distribution
Percentage of the Excess New OCD Common Stock, and (iv) Cash in an amount
equal to the Class 4 Final Distribution Percentage of the Excess Litigation
Trust Recoveries.
(ii) Status
Class 4 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 4 shall be
entitled to vote to accept or reject the Plan.
(c) Class 5: Bondholders Claims
(i) Treatment
In full satisfaction, release and discharge of, and in exchange for,
its Allowed Class 5 Claim, each holder of an Allowed Class 5 Claim who has
complied with Section 8.8 of the Plan shall receive the following:
On, or as soon as reasonably practicable after, the later of (i) the
Initial Distribution Date, (ii) the date on which such Class 5 Claim becomes
an Allowed Class 5 Claim, or (iii) the date on which such Class 5 Claim
becomes due and payable pursuant to any agreement between a Debtor and a
holder of a Class 5 Claim, such holder's Pro Rata share of either:
(a) if Class 4 accepts the Plan, the portion of the Combined Net
Distribution Package equal to the Class 5 Initial Distribution Percentage; or
(b) if Class 4 rejects the Plan, the portion of the Combined
Distribution Package equal to the Class 5 Initial Distribution Percentage.
In addition, on or as soon as reasonably practicable after the Final
Distribution Date, each holder of an Allowed Class 5 Claim shall receive its
Pro Rata share of the (i) Cash in an amount equal to the Class 5 Final
Distribution Percentage of Excess Available Cash, (ii) Excess Senior Notes in
an aggregate principal amount equal to the Class 5 Final Distribution
Percentage of the Excess Senior Notes Amount, (iii) shares of New OCD Common
Stock in an aggregate number equal to the Class 5 Final Distribution
Percentage of the Excess New OCD Common Stock, and (iv) Cash in an amount
equal to the Class 5 Final Distribution Percentage of the Excess Litigation
Trust Recoveries.
(ii) Status
Class 5 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 5 shall be
entitled to vote to accept or reject the Plan.
(d) Class 6: General Unsecured Claims
(i) Treatment
In full satisfaction, release and discharge of, and in exchange for,
its Allowed Class 6 Claim, each holder of an Allowed Class 6 Claim shall
receive the following:
On, or as soon as reasonably practicable after, the later of (i) the
Initial Distribution Date, (ii) the date on which such Class 6 Claim becomes
an Allowed Class 6 Claim, or (iii) the date on which such Class 6 Claim
becomes due and payable pursuant to any agreement between a Debtor and a
holder of a Class 6 Claim, such holder's Pro Rata share of either:
(a) if Class 4 accepts the Plan, the portion of the Combined Net
Distribution Package equal to the Class 6 Initial Distribution Percentage; or
(b) if Class 4 rejects the Plan, the portion of the Combined
Distribution Package equal to the Class 6 Initial Distribution Percentage.
In addition, on or as soon as reasonably practicable after the Final
Distribution Date, each holder of an Allowed Class 6 Claim shall receive its
Pro Rata share of the (i) Cash in an amount equal to the Class 6 Final
Distribution Percentage of Excess Available Cash, (ii) Excess Senior Notes in
an aggregate principal amount to the Class 6 Final Distribution Percentage of
the Excess Senior Notes Amount, (iii) shares of New OCD Common Stock in an
aggregate number equal to the Class 6 Final Distribution Percentage of the
Excess New OCD Common Stock, and (iv) Cash in an amount equal to the Class 6
Final Distribution Percentage of the Excess Litigation Trust Recoveries.
(ii) Status
Class 6 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 6 shall be
entitled to vote to accept or reject the Plan.
(e) Class 7: OC Asbestos Personal Injury Claims
(i) Treatment
ALL CLASS 7 CLAIMS SHALL BE CHANNELED TO THE ASBESTOS PERSONAL INJURY
TRUST, AND SHALL BE PROCESSED, LIQUIDATED AND PAID PURSUANT TO THE TERMS AND
PROVISIONS OF THE ASBESTOS PERSONAL INJURY TRUST DISTRIBUTION PROCEDURES AND
THE ASBESTOS PERSONAL INJURY TRUST AGREEMENT. THE ASBESTOS PERSONAL INJURY
TRUST WILL BE FUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 10.3 OF THE
PLAN. THE SOLE RECOURSE OF THE HOLDER OF A CLASS 7 CLAIM SHALL BE THE ASBESTOS
PERSONAL INJURY TRUST, AND SUCH HOLDER SHALL HAVE NO RIGHT WHATSOEVER AT ANY
TIME TO ASSERT ITS CLAIM OR DEMAND AGAINST ANY PROTECTED PARTY. WITHOUT
LIMITING THE FOREGOING, ON THE EFFECTIVE DATE, ALL PERSONS SHALL BE
PERMANENTLY AND FOREVER STAYED, RESTRAINED, AND ENJOINED FROM TAKING ANY
ENJOINED ACTIONS FOR THE PURPOSE OF, DIRECTLY OR INDIRECTLY, COLLECTING,
RECOVERING, OR RECEIVING PAYMENT OF, ON, OR WITH RESPECT TO ANY CLASS 7 CLAIM
(OTHER THAN ACTIONS BROUGHT TO ENFORCE ANY RIGHT OR OBLIGATION UNDER THE PLAN,
ANY EXHIBITS TO THE PLAN, OR ANY OTHER AGREEMENT OR INSTRUMENT BETWEEN THE
DEBTORS OR REORGANIZED DEBTORS AND THE ASBESTOS PERSONAL INJURY TRUST, WHICH
ACTIONS SHALL BE IN CONFORMITY AND COMPLIANCE WITH THE PROVISIONS HEREOF).
Nothing contained in this Section 3.3(e) shall constitute or be
deemed a waiver of any claim, right, or cause of action that the Debtors, the
Reorganized Debtors or the Asbestos Personal Injury Trust may have against any
Person in connection with or arising out of a Class 7 Claim, and the
injunction shall not apply to the assertion of any such claim, right, or cause
of action by the Debtors, the Reorganized Debtors, the Asbestos Personal
Injury Trust, or the Litigation Trust.
(ii) Status
Class 7 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 7 shall be
entitled to vote to accept or reject the Plan.
(f) Class 8: FB Asbestos Personal Injury Claims
(i) Treatment
ALL CLASS 8 CLAIMS SHALL BE CHANNELED TO THE ASBESTOS PERSONAL INJURY
TRUST, AND SHALL BE PROCESSED, LIQUIDATED AND PAID PURSUANT TO THE TERMS AND
PROVISIONS OF THE ASBESTOS PERSONAL INJURY TRUST DISTRIBUTION PROCEDURES AND
THE ASBESTOS PERSONAL INJURY TRUST AGREEMENT. THE ASBESTOS PERSONAL INJURY
TRUST WILL BE FUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 10.3 OF THE
PLAN. THE SOLE RECOURSE OF THE HOLDER OF A CLASS 8 CLAIM SHALL BE THE ASBESTOS
PERSONAL INJURY TRUST AND SUCH HOLDER SHALL HAVE NO RIGHT WHATSOEVER AT ANY
TIME TO ASSERT ITS CLAIM OR DEMAND AGAINST ANY PROTECTED PARTY. WITHOUT
LIMITING THE FOREGOING, ON THE EFFECTIVE DATE, ALL PERSONS SHALL BE
PERMANENTLY AND FOREVER STAYED, RESTRAINED, AND ENJOINED FROM TAKING ANY
ENJOINED ACTIONS FOR THE PURPOSE OF, DIRECTLY OR INDIRECTLY, COLLECTING,
RECOVERING, OR RECEIVING PAYMENT OF, ON, OR WITH RESPECT TO ANY CLASS 8 CLAIM
(OTHER THAN ACTIONS BROUGHT TO ENFORCE ANY RIGHT OR OBLIGATION UNDER THE PLAN,
ANY EXHIBITS TO THE PLAN, OR ANY OTHER AGREEMENT OR INSTRUMENT BETWEEN THE
DEBTORS OR REORGANIZED DEBTORS AND THE ASBESTOS PERSONAL INJURY TRUST, WHICH
ACTIONS SHALL BE IN CONFORMITY AND COMPLIANCE WITH THE PROVISIONS HEREOF).
Nothing contained in this Section 3.3(f) shall constitute or be
deemed a waiver of any claim, right, or cause of action that the Debtors, the
Reorganized Debtors or the Asbestos Personal Injury Trust may have against any
Person in connection with or arising out of a Class 8 Claim, and the
injunction shall not apply to the assertion of any such claim, right, or cause
of action by the Debtors, the Reorganized Debtors, the Asbestos Personal
Injury Trust, or the Litigation Trust.
(ii) Status
Class 8 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 8 shall be
entitled to vote to accept or reject the Plan.
(g) Class 9: FB Asbestos Property Damage Claims
(i) Treatment
ALL CLASS 9 CLAIMS SHALL BE CHANNELED TO FB ASBESTOS PROPERTY DAMAGE
TRUST, AND SHALL BE PROCESSED, LIQUIDATED AND PAID PURSUANT TO THE TERMS AND
PROVISIONS OF THE FB ASBESTOS PROPERTY DAMAGE TRUST AGREEMENT AND THE FB
ASBESTOS PROPERTY DAMAGE TRUST DISTRIBUTION PROCEDURES. THE FB ASBESTOS
PROPERTY DAMAGE TRUST WILL BE FUNDED IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 11.3 OF THE PLAN. THE SOLE RECOURSE OF THE HOLDER OF AN ALLOWED CLASS
9 CLAIM SHALL BE THE FB ASBESTOS PROPERTY DAMAGE TRUST, AND SUCH HOLDER SHALL
HAVE NO RIGHT WHATSOEVER AT ANY TIME TO ASSERT ITS CLASS 9 CLAIM AGAINST ANY
FB PERSON. WITHOUT LIMITING THE FOREGOING, ON THE EFFECTIVE DATE, ALL PERSONS
SHALL BE PERMANENTLY AND FOREVER STAYED, RESTRAINED, AND ENJOINED FROM TAKING
ANY ENJOINED ACTIONS FOR THE PURPOSE OF, DIRECTLY OR INDIRECTLY, COLLECTING,
RECOVERING, OR RECEIVING PAYMENT OF, ON, OR WITH RESPECT TO ANY FB ASBESTOS
PROPERTY DAMAGE CLAIMS (OTHER THAN ACTIONS BROUGHT TO ENFORCE ANY RIGHT OR
OBLIGATION UNDER THE PLAN, ANY EXHIBITS TO THE PLAN, OR ANY OTHER AGREEMENT OR
INSTRUMENT BETWEEN THE DEBTORS OR REORGANIZED DEBTORS AND THE FB ASBESTOS
PROPERTY DAMAGE TRUST, WHICH ACTIONS SHALL BE IN CONFORMITY AND COMPLIANCE
WITH THE PROVISIONS HEREOF).
(ii) Status
Class 9 Claims are Impaired. To the extent and in the manner provided
in the Voting Procedures Order, holders of the Claims in Class 9 shall be
entitled to vote to accept or reject the Plan.
(h) Class 10: Intercompany Claims
(i) Treatment
Under the Plan, on the Effective Date, all Intercompany Claims other
than such Claims set forth in Schedule XIV, to be filed or amended at least
five (5) Business Days prior to the Objection Deadline, shall be deemed
cancelled and extinguished but solely for purposes of the Plan. No holder
thereof shall be entitled to, or shall receive or retain any property or
interest in property on account of, such Intercompany Claim pursuant to the
Plan. Schedule XIV shall indicate the classification and/or treatment of the
Claims set forth therein.
(ii) Status
Class 10 Claims are Impaired. The holders of the Claims in Class 10
are deemed to reject the Plan and, accordingly, are not entitled to vote to
accept or reject the Plan.
(i) Class 11: OCD Interests
(i) Treatment
On the Effective Date, all of the OCD Interests outstanding at the
Effective Date shall be deemed cancelled and extinguished. No holder thereof
shall be entitled to, or shall receive or retain any property or interest in
property on account of, such OCD Interests.
(ii) Status
Class 11 Claims are Impaired. The holders of the Claims in Class 11
are deemed to reject the Plan and, accordingly, are not entitled to vote to
accept or reject the Plan.
3.4 Reservation of Rights Regarding Claims
Except as otherwise expressly provided in the Plan, nothing will
affect the Debtors' or Reorganized Debtors' rights and defenses, both legal
and equitable, with respect to any Claims, including, without limitation, all
rights with respect to legal and equitable defenses to alleged rights of
setoff or recoupment. Notwithstanding the substantive consolidation of the
Debtors, the Claims against any particular Debtor that are Unimpaired shall
remain the obligations solely of such Debtor and shall not become obligations
of any other Debtor or Reorganized Debtor.
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN
4.1 Impaired Classes of Claims and Interests Entitled to Vote
Subject to Sections 4.3 and 4.4 hereof, holders of Claims in each
Impaired Class of Claims shall be entitled to vote as a Class to accept or
reject the Plan.
4.2 Acceptance by an Impaired Class
Acceptance of the Plan by any Impaired Class of Claims shall be
determined in accordance with the Voting Procedures Order and the Bankruptcy
Code.
4.3 Presumed Acceptances by Unimpaired Classes
Classes 1, 2A and 2B are Unimpaired by the Plan. Under Section
1126(f) of the Bankruptcy Code, holders of Claims in Classes 1, 2A and 2B are
conclusively presumed to accept the Plan, and the votes of such Claim holders
will not be solicited.
4.4 Classes Deemed to Reject the Plan
Holders of Claims and Interests in Classes 10 and 11 are not entitled
to receive or retain any property under the Plan. Under Section 1126(g) of the
Bankruptcy Code, holders of Claims and Interests in Classes 10 and 11 are
deemed to reject the Plan, and the votes of such Claim or Interest holders
will not be solicited.
4.5 Summary of Classes Voting on the Plan
As a result of the provisions of Sections 4.1, 4.3 and 4.4 hereof,
the votes of holders of Claims in Classes 3, 4, 5, 6, 7, 8 and 9 will be
solicited with respect to the Plan.
4.6 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 Plan Proponents will request confirmation of
the Plan, as it may be modified from time to time, under Section 1129(b) of
the Bankruptcy Code. The Plan Proponents reserve the right to alter, amend,
modify, revoke or withdraw the Plan or any exhibits or schedules attached to
the Plan, including to amend or modify it to satisfy the requirements of
Section 1129(b) of the Bankruptcy Code, if necessary.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
5.1 Continued Corporate Existence
Following confirmation and consummation of the Plan, subject to the
Restructuring Transactions (if any), the Reorganized Debtors will continue to
exist as separate corporate entities in accordance with the laws of their
respective states of incorporation and pursuant to their respective
certificates or articles of incorporation and bylaws in effect prior to the
Effective Date, except to the extent such certificates or articles of
incorporation and bylaws are amended pursuant to the Plan. OC intends to
implement a restructuring plan which would reorganize OCD and its Subsidiaries
along OC's major business lines. The planning for this restructuring is in a
preliminary stage. It is anticipated that the restructuring plan which is
adopted will be announced prior to the Disclosure Statement Hearing and will be
described in an amendment to the Plan.
5.2 Cancellation of Debt and Debt Agreements
(a) On the Effective Date, (i) the Debt shall be cancelled and
extinguished and (ii) the obligations of the Debtors, CFSB as agent for the
Bank Holders and the Pre-petition Indenture Trustees under the Debt Agreements
shall be discharged. Notwithstanding the foregoing, each of the Pre-petition
Bond Indentures shall continue in effect solely for the purposes of (x)
allowing the Pre-petition Indenture Trustee to make distributions to holders
of Allowed Class 5 Claims pursuant to the Plan and (y) permitting the
Pre-petition Indenture Trustee to maintain any rights or liens it may have for
fees, costs and expenses under its indenture or other agreement, but the
foregoing shall not result in any expense or liability to any Reorganized
Debtor other than as expressly provided for in the Plan.
(b) No Reorganized Debtor shall have any obligations to any
Pre-petition Indenture Trustee, agent or service (or to any disbursing agent
replacing a Pre-petition Indenture Trustee, agent or service) for any fees,
costs or expenses, except as expressly provided in the Plan. Except as
provided in any contract, instrument or other agreement or document entered
into or delivered in connection with the Plan, on the Effective Date and
immediately following the completion of distributions to holders of Claims in
Class 5, the Pre-petition Indenture Trustees shall be released from all
duties, without any further action on the part of the Debtors or Reorganized
Debtors.
5.3 Cancellation of OCD Interests
As of the Effective Date, by virtue of the Plan, and without any
action necessary on the part of the holders thereof or any corporate action,
except as specified in the Plan, all of the OCD Interests outstanding at the
Effective Date shall be cancelled, extinguished and retired, and no
consideration will be paid or delivered with respect thereto. Holders of OCD
Interests shall not be required to surrender their certificates or other
instruments evidencing ownership of such OCD Interests.
5.4 Certificates of Incorporation and Bylaws
The certificate or articles of incorporation and bylaws of each
Debtor will be amended as necessary to satisfy the provisions of the Plan and
the Bankruptcy Code and will 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 Amended and Restated Certificate of
Incorporation of Reorganized OCD and the Amended and Restated Bylaws of
Reorganized OCD will also include provisions (i) creating the New OCD Common
Stock, (ii) stating any restrictions on the transfer of the New OCD Common
Stock, and (iii), to the extent necessary or appropriate, effectuating the
provisions of the Plan. The Amended and Restated Certificate of Incorporation
of Reorganized OCD and the Amended and Restated Bylaws of Reorganized OCD
shall be in substantially the forms of Exhibit A and Exhibit B, to be filed at
least five (5) Business Days prior to the Objection Deadline.
5.5 Exculpation and Limitation of Liability
(a) No Claimant Released Party shall have or incur any liability to
any Person that has held, currently holds or may hold a Claim or other
obligation, suit, judgment, damages, Demand, debt, right, cause of action or
liability or Interest or other right of an equity security holder, or any
other party in interest, or any Person claiming by or through them, or any of
their respective Related Persons, for any act or omission in connection with,
relating to, or arising out of, the Chapter 11 Cases, formulating, negotiating
or implementing 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 willful misconduct or gross
negligence, 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 herein, no Person that has
held, currently holds or may hold a Claim or other obligation, suit, judgment,
damages, Demand, debt, right, cause of action or liability or Interest or
other right of an equity security holder, no person claiming by or through
them, nor any of their respective Related Persons, shall have any right of
action against any Claimant Released Party for any act or omission in
connection with, relating to, or arising out of, the Chapter 11 Cases,
formulating, negotiating or implementing the Plan, solicitation of acceptances
of the Plan, the pursuit of confirmation of the Plan, the consummation of the
Plan, the confirmation of the Plan or the administration of the Plan or the
property to be distributed under the Plan, except for willful misconduct or
gross negligence.
(c) The foregoing exculpation and limitation on liability shall not,
however, limit, abridge or otherwise affect the rights of the Reorganized
Debtors to enforce, sue on, settle or compromise the rights, claims and other
matters retained by Reorganized Debtors pursuant to Section 5.10 of the Plan.
5.6 Restructuring Transactions
Subject to such approval of the Board of Directors of Reorganized OCD
and the holders of New OCD Common Stock as may be required under the Amended
and Restated Certificate of Incorporation of Reorganized OCD, the Amended and
Restated By-Laws of Reorganized OCD and/or applicable non-bankruptcy law, on or
after the Effective Date, any Reorganized Debtor may enter into Restructuring
Transactions and may take such actions as may be necessary or appropriate to
effect such Restructuring Transactions, as may be determined by such
Reorganized Debtor to be necessary or appropriate. The actions to effect the
Restructuring Transactions may include: (i) the execution and delivery of
appropriate agreements or other documents of merger, consolidation,
restructuring, disposition, liquidation or dissolution containing terms that
are consistent with the terms herein and that satisfy the applicable
requirements of applicable law and such other terms to which the applicable
entities may agree; (ii) 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 herein
and having such other terms to which the applicable entities may agree; (iii)
the filing of appropriate certificates or articles of merger, consolidation or
dissolution pursuant to applicable law; and (iv) all other actions which the
applicable entities may determine to be necessary or appropriate, including
making filings or recordings that may be required by applicable law in
connection with such transactions. The Restructuring Transactions may include
one or more mergers, consolidations, restructures, dispositions, liquidations
or dissolutions, as may be determined by the Reorganized Debtors to be
necessary or appropriate to result in substantially all of the respective
assets, properties, rights, liabilities, duties and obligations of all or
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, 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. OC
intends to implement a restructuring plan which would reorganize OCD and its
Subsidiaries along OC's major business lines. The planning for this
restructuring is in a preliminary stage. It is anticipated that the
restructuring plan which is adopted will be announced prior to the Disclosure
Statement Hearing and will be described in an amendment to the Plan. On or
prior to, or as soon as practicable after, the Effective Date, the Reorganized
Debtors may take such steps as may be necessary or appropriate to effectuate
Restructuring Transactions that satisfy the requirements set forth in this
Section 5.6.
5.7 Issuance of New OCD Securities
(a) On the Initial Distribution Date, Reorganized OCD shall issue for
distribution in accordance with the terms of the Plan (i) the New OCD Common
Stock, and (ii) Senior Notes in the Senior Notes Amount.
(b) All of the shares of New OCD Common Stock issued as of the
Effective Date, the Initial Distribution Date or the Final Distribution Date,
as the case may be, will be fully paid and non-assessable.
(c) The issuance of all of the New OCD Securities, and the
distribution thereof, shall be exempt from registration under applicable
securities laws pursuant to Section 1145 of the Bankruptcy Code.
5.8 Litigation Trust
On the Effective Date, the Reorganized Debtors will transfer and
assign, or cause to be transferred and assigned to the Litigation Trust, all
their right, title and interest in and to the Litigation Trust Assets.
(a) Appointment of Litigation Trustee
The Litigation Trustee for the Litigation Trust shall be designated
by the Plan Proponents and approved by the Bankruptcy Court. On or prior to
the date of the Disclosure Statement Hearing, the Plan Proponents shall file
with the Bankruptcy Court a notice designating the Person they have selected
as Litigation Trustee and seeking approval of such designation at the
Confirmation Hearing. Once approved by the Bankruptcy Court, the Litigation
Trustee shall have and perform all of the duties, responsibilities, rights and
obligations set forth in the Litigation Trust Agreement.
(b) Transfer of Litigation Trust Assets to the Litigation Trust
On the Effective Date, the Debtors shall irrevocably transfer the
Litigation Trust Assets (except such assets as have been previously settled)
to the Litigation Trust, for and on behalf of the beneficiaries of the
Litigation Trust. Upon such transfer, the Debtors, the Disbursing Agent and
the Reorganized Debtors shall have no further interests therein or rights or
obligations with respect thereto other than the right of the Reorganized
Debtors to recover the Litigation Trust Reimbursement Obligation as set forth
in Section 5.8(e) hereof.
(c) The Litigation Trust
(i) Without any further action of the directors or
shareholders of the Debtors, on the Effective Date, the
Litigation Trust Agreement in the form of Exhibit C, to be
filed no later than five (5) Business Days prior to the
Disclosure Statement Hearing, as it may be amended up to
five (5) Business Days prior to the Objection Deadline,
shall become effective. The Litigation Trustee shall
accept the Litigation Trust and sign the Litigation Trust
Agreement as of the Effective Date and the Litigation
Trust will then be deemed created and effective.
(ii) The Litigation Trustee shall have full authority to take
any steps necessary to administer the Litigation Trust
Agreement, including, without limitation, the duty and
obligation to liquidate Litigation Trust Assets, to make
distributions therefrom to the holders of Allowed Claims
in Classes 4, 5, 6, and 7 and to pursue and settle any of
the rights and claims with respect to the Litigation Trust
Assets.
(iii) All costs and expenses associated with the administration
of the Litigation Trust, including those rights,
obligations and duties described in this Section 5.8,
shall be the responsibility of and paid by the Litigation
Trust. Notwithstanding the foregoing, the Reorganized
Debtors shall make available to the Litigation Trustee and
to representatives of the Litigation Trust reasonable
access during normal business hours, upon reasonable
notice, personnel and books and records of the Reorganized
Debtors to enable the Litigation Trustee to perform the
Litigation Trustee's tasks under the Litigation Trust
Agreement and the Plan; provided, however, that the
Reorganized Debtors shall not be required to make
expenditures in response to such requests determined by
them in good faith to be unreasonable.
(iv) The Litigation Trustee may retain such law firms,
accounting firms, experts, advisors, consultants,
investigators, appraisers, auctioneers or other
professionals as it may deem necessary, in its sole
discretion, to aid in the performance of its
responsibilities pursuant to the terms of the Plan
including, without limitation, the liquidation and
distribution of Litigation Trust Assets.
(v) For federal income tax purposes, it is intended that the
Litigation Trust be classified as a liquidating trust
under Section 301.7701-4 of the Treasury Regulations and
that such trust is owned by its beneficiaries.
Accordingly, for federal income tax purposes, it is
intended that the beneficiaries be treated as if they had
received a distribution of an undivided interest in the
Litigation Trust Assets and then contributed such
interests to the Litigation Trust.
(vi) The Litigation Trustee shall be responsible for filing all
federal, state and local tax returns for the Litigation
Trust.
(vii) The Litigation Trustee may invest the corpus of the
Litigation Trust in prudent investments in addition to
those described in Section 345 of the Bankruptcy Code.
(viii) The Litigation Trustee may be removed by the Bankruptcy
Court for cause shown. In the event of the resignation or
removal of the Litigation Trustee, the Bankruptcy Court
shall designate a person to serve as successor Litigation
Trustee.
(d) Funding of the Litigation Trust
The Debtors shall deliver the Litigation Trust Initial Deposit to the
Litigation Trustee on the Effective Date. The Litigation Trustee shall use the
Litigation Trust Initial Deposit consistent with the purpose of the Litigation
Trust and subject to the terms and conditions of the Plan and the Litigation
Trust Agreement.
(e) Distributions of Litigation Trust Assets
The Litigation Trustee shall make distributions of Litigation Trust
Recoveries in accordance with the Litigation Trust Agreement. The Litigation
Trust Agreement shall provide for distributions to be made as soon as
practicable after receipt of Litigation Trust Recoveries as follows: (i)
first, to pay the Litigation Trust Expenses; (ii) second, to repay the
Litigation Trust Reimbursement Obligation until such time as the Litigation
Trust Reimbursement Obligation is paid in full; and (iii) third, to (a)
holders of Allowed Claims in each of Classes 4, 5, and 6 (and reserving for
holders of Disputed Claims in each of such Classes) in accordance with
Sections 3.3(b), 3.3(c) and 3.3(d) of the Plan, and, (b) the Asbestos Personal
Injury Trust for distribution in accordance with Section 3.3(e) of the Plan.
5.9 Revesting of Assets
Pursuant to Section 1141(b) of the Bankruptcy Code, all property of
the respective Estate of each Debtor, 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 Reorganized
Debtor on the Effective Date. Thereafter, the Reorganized Debtors may operate
their businesses and may use, acquire and dispose of property free of any
restrictions of the Bankruptcy Code, the Bankruptcy Rules and the Bankruptcy
Court. As of the Effective Date, all property of each Reorganized Debtor shall
be free and clear of all Encumbrances, Claims and Interests, except as
specifically provided in the Plan or the Confirmation Order. Without limiting
the generality of the foregoing, each Reorganized Debtor may, without
application to or approval by the Bankruptcy Court, pay fees that it incurs
after the Effective Date for professional services and expenses.
5.10 Rights of Action
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, the Reorganized Debtors shall retain and may enforce, sue on,
settle or compromise (or decline to do any of the foregoing) all rights,
claims, causes of action, suits or proceedings accruing to the Debtors or the
Estates pursuant to the Bankruptcy Code or pursuant to any statute or legal
theory, including, without limitation, any avoidance or recovery actions under
Sections 544, 545, 547, 548, 549, 550, 551 and 553 of the Bankruptcy Code and
any suits or proceedings for recovery under any policies of insurance issued
to or on behalf of the Debtors. Except to the extent such rights, title and
interest in the Litigation Trust Assets are transferred and assigned to the
Litigation Trust, the Reorganized Debtors shall be deemed the appointed
representative to, and may pursue, litigate, compromise and settle any such
rights, claims, causes of action, suits or proceedings as appropriate, in
accordance with the best interests of the Reorganized Debtors or their
respective successors who hold such rights. The Reorganized Debtors will
transfer and assign, or cause to be transferred and assigned, all their right,
title and interest in and to the Litigation Trust Assets to the Litigation
Trust in accordance with Section 5.8, or, if deemed necessary, any right,
title and interest in and to Litigation Trust Assets shall be pursued in the
name of the Debtors or the Reorganized Debtors for the benefit of the
Litigation Trust. Notwithstanding anything in the Plan to the contrary, the
Debtors, upon such transfer and assignment, shall forgo any interest they may
have in the Litigation Trust Assets, except with respect to the Litigation
Trust Reimbursement Obligation.
5.11 Effectuating Documents; Further Transactions
The chairman of the OCD Board of Directors, the chief executive
officer, chief restructuring officer, president, chief financial officer or
any other appropriate officer of OCD or any applicable Debtor, 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 herein. The secretary or assistant secretary
of OCD or any applicable Debtor, as the case may be, shall be authorized to
certify or attest to any of the foregoing actions.
5.12 Exemption from Certain Transfer Taxes
Pursuant to Section 1146(c) of the Bankruptcy Code, any transfers in
the United States from a Debtor to a Reorganized Debtor or any other Person or
entity pursuant to the Plan shall not be subject to any document recording
tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax,
stamp act, real estate transfer tax, mortgage recording tax or other similar
tax or governmental assessment, and the Confirmation Order shall direct the
appropriate state or local governmental officials or agents to forego the
collection of any such tax or governmental assessment and to accept for filing
and recordation any of the foregoing instruments or other documents without
the payment of any such tax or governmental assessment.
5.13 Releases and Injunction Related to Releases
(a) Releases by Debtors
Effective as of the Confirmation Date, but subject to the occurrence
of the Effective Date, for good and valuable consideration, to the fullest
extent permissible under applicable law, each of the Debtors and Reorganized
Debtors and their respective Estates and each of their respective Related
Persons will be deemed to completely and forever release, waive, void,
extinguish and discharge all Released Actions (other than the rights to
enforce the Plan and any right or obligation under the Plan, and the
securities, contracts, instruments, releases, indentures and other agreements
or documents delivered thereunder or contemplated thereby) that may be
asserted by or on behalf of the Debtors or Reorganized Debtors or their
respective Estates or each of their respective Related Persons against (i) the
Released Parties, (ii) the Pre-petition Indenture Trustees, (iii) the DIP
Agent and the holders of DIP Facility Claims and (iv) the Persons who are
Related Persons of Persons listed in clauses (ii) - (iv) above.
(b) Releases by Holders of Claims and Interests
Effective as of the Confirmation Date, but subject to the occurrence
of the Effective Date, for good and valuable consideration, to the fullest
extent permissible under applicable law, each Person that has held, currently
holds or may hold a Claim or other obligation, suit, judgment, damages, debt,
right, cause of action or liability that is discharged or an Interest or other
right of an equity security holder that is terminated, and each of their
respective Related Persons will be deemed to completely and forever release,
waive, void, extinguish and discharge all Released Actions (other than the
rights to enforce the Debtors' or the Reorganized Debtors' obligations under
the Plan, and any right or obligation of such holder under the Plan, and the
securities, contracts, instruments, releases, indentures and other agreements
or documents delivered thereunder or contemplated thereby) that otherwise may
be asserted against the Claimant Released Parties.
(c) Injunction Related to Releases
Except as otherwise provided herein or in the Confirmation Order, as
of the Confirmation Date, but subject to the occurrence of the Effective Date,
each Person that has held, currently holds or may hold a Claim that is
released pursuant to this Section 5.13 of the Plan or other obligation, suit,
judgment, damages, debt, right, cause of action, liability, Interest or other
right of an equity security holder released pursuant to this Section 5.13 of
the Plan, and each other party in interest and each of their respective
Related Persons are permanently, forever and completely stayed, restrained,
prohibited and enjoined from taking any of the following actions, whether
directly or indirectly, derivatively or otherwise on account of or based on
the subject matter of any such released Claims or other released obligations,
suits, judgments, damages, debts, rights, causes of action or liabilities or
Interests or other rights of an equity security holder: (i) commencing,
conducting or continuing in any manner, directly or indirectly, any suit,
action or other proceeding (including, without limitation, to any judicial,
arbitral, administrative or other proceeding) in any forum; (ii) enforcing,
attaching (including, without limitation, any prejudgment attachment),
collecting, or in any way seeking to recover any judgment, award, decree, or
other order; (iii) creating, perfecting or in any way enforcing in any matter,
directly or indirectly, any Encumbrance; (iv) setting off, seeking
reimbursement or contributions from, or subrogation against, or otherwise
recouping in any manner, directly or indirectly, any amount against any
liability or obligation owed to any Person released under Section 5.13(a) or
Section 5.13(b), as applicable; and (v) commencing or continuing in any
manner, in any place of any action, which in any such case does not comply
with or is inconsistent with the provisions of the Plan.
(d) Injunction Relating to Hartford Entities
Except as to any rights with respect to which the Debtors explicitly
declined to give a release to the Hartford Entities pursuant to Section VI of
the Hartford Settlement Agreement, effective as of the Confirmation Date, but
subject to the occurrence of the Effective Date, for good and valuable
consideration, pursuant to Section 105(a) of the Bankruptcy Code, to the
fullest extent permissible under applicable law, each Person that has held,
currently holds or may hold a Claim shall be permanently enjoined pursuant to
11 U.S.C. ss.105(a) from taking any action or seeking any recovery against or
from any of the Hartford Entities that seeks to enforce any rights under,
through or related to the Hartford Policies.
(e) Deemed Consent
By voting to accept the Plan, each holder of a Claim will be deemed, to
the fullest extent permitted by applicable law, to have specifically consented
to the releases and injunctions set forth in this Section 5.13.
(f) No Waiver
The release set forth in Subsection (a) of this Section 5.13 shall
not, however, limit, abridge or otherwise affect the rights of the Reorganized
Debtors to enforce, sue on, settle or compromise the rights, claims and other
matters retained by Reorganized Debtors pursuant to the Plan.
5.14 Permanent Injunctions and Asbestos Personal Injury Permanent
Channeling Injunction
(a) General Injunction
Except as provided in the Plan or the Confirmation Order, as of the
Confirmation Date, but subject to the occurrence of the Effective Date, all
Persons and any Person claiming by or through them, that have held, currently
hold or may hold a Claim or other obligation, suit, judgment, damages, debt,
right, cause of action or liability (other than a Demand) that is discharged
or an Interest or other right of an equity security holder that is terminated
pursuant to the terms of the Plan will be permanently, forever and completely
stayed, restrained, prohibited and enjoined from taking any Enjoined Action
against any of the Released Parties or Claimant Released Parties whether
directly or indirectly, derivatively or otherwise for the purpose of, directly
or indirectly, collecting, recovering or receiving payment of, on or with
respect to any such discharged Claim or other obligation, suit, judgment,
damages, debt, right, cause of action or liability, or terminated Interest or
right of an equity security holder on account of, or based on the subject
matter of, any such discharged Claims, obligations, suits, judgments, damages,
debts, rights, causes of action or liabilities or terminated Interests or
rights of an equity security holder.
(b) Asbestos Personal Injury Permanent Channeling Injunction
PURSUANT TO SECTION 524(g) OF THE BANKRUPTCY CODE AND PURSUANT TO AND
IN CONJUNCTION WITH THE CONFIRMATION ORDER, ALL PERSONS WILL BE PERMANENTLY,
FOREVER AND COMPLETELY STAYED, RESTRAINED, PROHIBITED AND ENJOINED FROM TAKING
ANY ENJOINED ACTION, OR PROCEEDING IN ANY MANNER IN ANY PLACE WITH REGARD TO ANY
MATTER THAT IS SUBJECT TO RESOLUTION PURSUANT TO THE ASBESTOS PERSONAL INJURY
TRUST AGREEMENT, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY RESOLVED
ASBESTOS PERSONAL INJURY CLAIM, EXCEPT IN CONFORMITY AND COMPLIANCE THEREWITH,
AGAINST ANY PROTECTED PARTY OR PROPERTY OR INTERESTS IN PROPERTY OF ANY
PROTECTED PARTY, WHETHER DIRECTLY OR INDIRECTLY, DERIVATIVELY OR OTHERWISE, FOR
THE PURPOSE OF, DIRECTLY OR INDIRECTLY, COLLECTING, RECOVERING OR RECEIVING
PAYMENT OF, ON OR WITH RESPECT TO ANY ASBESTOS PERSONAL INJURY CLAIMS (OTHER
THAN PURSUANT TO THE PROVISIONS OF THE ASBESTOS PERSONAL INJURY TRUST AGREEMENT
OR TO ENFORCE THE PROVISIONS OF THE PLAN).
(c) No Waiver
Nothing contained in the Asbestos Personal Injury Permanent
Channeling Injunction shall be deemed a waiver of any claim, right or cause of
action that the Debtors, the Reorganized Debtors or the Asbestos Personal
Injury Trust may have against any Person in connection with or arising out of
an Asbestos Personal Injury Claim.
5.15 Directors and Officers of Reorganized Debtors
(a) Directors of Reorganized Debtors
(i) Appointment. The initial Board of Directors of
Reorganized OCD shall consist of twelve (12) members. The majority of the
initial Board of Directors shall be appointed by the Asbestos Claimants'
Committee and the Future Claimants' Representative; and the remaining initial
directors shall be appointed by the existing Board of Directors of OCD and
shall include David T. Brown, the Chief Executive Officer of Reorganized OCD.
The initial Board of Directors shall have at least three individuals who at
that time would qualify under New York Stock Exchange rules and applicable
laws as independent outside directors and who would be eligible to serve on
the audit committee of the Board of Directors of an SEC-reporting public
company and at least three individuals who would qualify as independent
directors under Section 162(m) of the IRC eligible to serve on the committee
of the Board of Directors responsible for matters of executive compensation.
The identities of the members of the initial Board of Directors of Reorganized
OCD shall be set forth in the Disclosure Statement. The boards of directors of
the other Reorganized Debtors shall consist of directors as determined by the
Plan Proponents. The Plan Proponents shall file with the Bankruptcy Court the
identities of such board members on a date not less than five (5) Business
Days prior to the Objection Deadline.
(ii) Terms. Commencing on the Effective Date, Reorganized
OCD board members shall serve for initial terms set forth in the Amended and
Restated Certificate of Incorporation of Reorganized OCD and the Amended and
Restated By-Laws of Reorganized OCD, as approved in the Confirmation Order.
(iii) Vacancies. The procedures for filling any vacancy in
the directorship prior to the expiration of the initial term shall be as set
forth in the Amended and Restated Certificate of Incorporation of Reorganized
OCD and the Amended and Restated By-Laws of Reorganized OCD, as approved in
the Confirmation Order.
(b) Officers of Reorganized Debtors
The existing senior officers of OCD who will serve initially
in the same capacities after the Effective Date for Reorganized OCD shall be
identified in the Disclosure Statement, and shall include David T. Brown as
Chief Executive Officer. The executive officers of the other Reorganized
Debtors shall consist of executive officers as determined by Reorganized OCD
on the Effective Date or thereafter.
5.16 Compensation and Benefit Programs
(a) Except and to the extent previously assumed or rejected by an
order of the Bankruptcy Court, on or before the Confirmation Date, all
employee compensation and benefit programs of the Debtors as amended or
modified, including programs subject to Sections 1114 and 1129(a)(13) of the
Bankruptcy Code, entered into before or after the Petition Date and not since
terminated, shall be deemed to be, and shall be treated as though they are,
executory contracts that are assumed except for (i) executory contracts or
plans specifically rejected pursuant to the Plan, and (ii) executory contracts
or plans as have previously been rejected, are the subject of a motion to
reject or have been specifically waived by the beneficiaries of any plans or
contracts; provided, however, that the Debtors may pay all "retiree benefits"
(as defined in Section 1114(a) of the Bankruptcy Code).
(b) On the Effective Date, Reorganized OCD will adopt Management
Arrangements to be determined at a later date and be incorporated into the
Plan by amendment. On the Effective Date, management and designated employees
of Reorganized OCD and the other Reorganized Debtors shall receive the
benefits provided under such Management Arrangements on the terms and
conditions provided for therein.
5.17 Continuation of Certain Orders
Notwithstanding anything in the Plan to the contrary, the Debtors will
continue to pay any Claims authorized to be paid by an order of the Bankruptcy
Court during the Chapter 11 Cases, pursuant to the terms and conditions of any
such order.
5.18 Exit Facility
On or prior to the Effective Date, OCD and those Subsidiaries which
are parties to the Exit Facility shall enter into all necessary and
appropriate documentation to obtain, and in connection with, the Exit
Facility.
ARTICLE VI
SUBSTANTIVE CONSOLIDATION FOR PURPOSES OF TREATING IMPAIRED CLAIMS
AND PROCESS FOR RESOLUTION OF KEY ISSUES
6.1 Substantive Consolidation
(a) The Debtors (but not the Fibreboard Insurance Settlement Trust)
all shall be substantively consolidated for the purposes of voting, determining
which Claims and Interests will be entitled to vote to accept or reject the
Plan, confirmation of the Plan and the resultant discharge of and cancellation
of Claims and Interests and distribution of assets, interests and other
property under the terms herein. Subject to Section 5.6, substantive
consolidation under the Plan will not result in the merger of or the transfer
or commingling of any assets of any of the Debtors or Non-Debtor Subsidiaries,
and, subject to Section 5.6, all assets (whether tangible or intangible) will
continue to be owned by the respective Debtors or Non-Debtor Subsidiaries, as
the case may be. In that regard, OC intends to implement a restructuring plan
which would reorganize OCD and its Subsidiaries along OC's major business
lines. The planning for this restructuring is in a preliminary stage. It is
anticipated that the restructuring plan which is adopted will be announced
prior to the Disclosure Statement Hearing and will be described in an amendment
to the Plan.
(b) On the Effective Date and for purposes set forth in Subsection
(a), (i) all assets and liabilities of each Subsidiary Debtor (excluding the
Fibreboard Insurance Settlement Trust) will be treated as though they were
merged into and with the assets and liabilities of OCD; (ii) except as
otherwise provided in the Plan, no distributions will be made under the Plan
on account of Intercompany Claims among any of the Debtors; (iii) all
guarantees of the Debtors of the obligations of any other Debtor will be
deemed eliminated, so that any claim against any such Debtor and any guarantee
thereof executed by any other such Debtor and any joint or several liability
of any of such Debtors will be deemed to be one obligation of the Debtors with
respect to the consolidated estate. Such substantive consolidation will not
(other than for purposes of the Plan) affect (i) the legal and corporate
structures of the Reorganized Debtors, subject to the right of the Debtors or
Reorganized Debtors to effect Restructuring Transactions as provided in
Section 5.6, (ii) Intercompany Claims, (iii) Subsidiary Interests or (iv) pre-
and post-Petition Date guarantees that are required to be maintained in
connection with executory contracts or unexpired leases that have been or will
be assumed pursuant to the Plan.
ARTICLE VII
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
7.1 Assumed Contracts and Leases
(a) Except as otherwise provided in the Plan, 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 assumed 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 a motion pending before the Bankruptcy
Court as of the Confirmation Date to assume or reject such contract or lease
or (iv) is listed on Schedule IV, to be filed at least five (5) Business Days
prior to the Objection Deadline, as being an executory contract or unexpired
lease to be rejected; provided, however, that the Plan Proponents reserve the
right, at any time prior to the Confirmation Date, to amend Schedule IV to add
or delete any unexpired lease or executory contract. The Confirmation Order
shall constitute an order of the Bankruptcy Court under Section 365 of the
Bankruptcy Code approving the contract and lease assumptions 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 affect 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, usufructs,
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 has been rejected
pursuant to an order of the Bankruptcy Court.
7.2 Payments Related to Assumption of Contracts and Leases
Any monetary amounts by which each executory contract and unexpired
lease to be assumed pursuant to the Plan is in default will be satisfied,
under Section 365(b)(1) of the Bankruptcy Code, at the option of the Debtors
or the assignee of a Debtor assuming such contract or lease, by Cure. If there
is a dispute regarding (i) the nature or amount of any Cure, (ii) the ability
of a Reorganized Debtor or any assignee to provide "adequate assurance of
future performance" (within the meaning of Section 365 of the Bankruptcy Code)
under the contract or lease to be assumed or (iii) any other matter pertaining
to assumption, Cure will occur following the entry of a Final Order of the
Bankruptcy Court resolving the dispute and approving the assumption or
assumption and assignment, as the case may be. The Confirmation Order shall
contain provisions for notices of proposed assumptions and proposed Cure
amounts to be sent to applicable third parties and for procedures for
objecting thereto and resolution of disputes by the Bankruptcy Court. If no
proposed Cure amount is proposed by the Debtors, it shall be presumed that the
Debtors are asserting that no Cure amount is required to be paid under Section
365(b)(1) of the Bankruptcy Code.
7.3 Rejected Contracts and Leases
On the Effective Date, each executory contract and unexpired lease
that is listed on Schedule IV, shall be rejected pursuant to Section 365 of
the Bankruptcy Code. Each contract or lease listed on Schedule IV shall be
rejected only to the extent that any such contract or lease constitutes an
executory contract or unexpired lease. The Plan Proponents reserve their
right, at any time prior to the Confirmation Date, to amend Schedule IV to
delete any unexpired lease or executory contract therefrom or add any
unexpired lease or executory contract thereto. To the extent that an executory
contract or unexpired lease (i) is not listed on Schedule IV, (ii) has not
been previously rejected or (iii) is not subject to a motion to reject at the
time of the Confirmation Date, such executory contract or unexpired lease
shall be deemed assumed. Listing a contract or lease on Schedule IV shall not
constitute an admission by a Debtor nor a Reorganized Debtor that such
contract or lease is an executory contract or unexpired lease or that such
Debtor or Reorganized Debtor has any liability thereunder. Without limiting
the foregoing, any agreement entered into prior to the Petition Date by or on
behalf of the Debtors with a holder of an Asbestos Personal Injury Claim with
respect to the settlement of any OC Asbestos Personal Injury Claim or FB
Asbestos Personal Injury Claim shall be deemed rejected as of the Effective
Date to the extent such settlement agreement is deemed to be an executory
contract within the meaning of Section 365(a) of the Bankruptcy Code. The
Confirmation Order shall constitute an order of the Bankruptcy Court approving
such rejections as of the Effective Date, pursuant to Section 365 of the
Bankruptcy Code.
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 and served upon counsel to the Debtors, counsel to the Unsecured
Creditors' Committee and counsel to the Asbestos Claimants' Committee, within
thirty (30) days after service of the earlier of (i) notice of the
Confirmation Order or (ii) other notice that the executory contract or
unexpired lease has been rejected.
7.5 Indemnification Obligations
Indemnification Obligations 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 and such obligations shall
survive confirmation of the Plan, remain unaffected by the Plan and shall not
be discharged or impaired by the Plan, irrespective of whether indemnification
or reimbursement obligation is owed in connection with an event occurring
before, on or after the Petition Date; provided, however, that, except as
otherwise provided in this Plan, indemnification obligations that are not
Indemnification Obligations within the meaning of Section 1.120 hereof 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 as of the
Effective Date.
7.6 Insurance Policies and Agreements
(a) Assumed Insurance Policies and Agreements.
The Debtors do not believe that the insurance policies issued to, or
insurance agreements entered into by, the Debtors prior to the Petition Date
constitute executory contracts. To the extent that such insurance policies or
agreements are considered to be executory contracts, then, notwithstanding
anything contained in Section 7.1 or 7.3 of the Plan to the contrary, the Plan
shall constitute a motion to assume such insurance policies and agreements,
and, subject to the occurrence of the Effective Date, the entry of the
Confirmation Order shall constitute approval of such assumption pursuant to
Section 365(a) of the Bankruptcy Code and a finding by the Bankruptcy Court
that each such assumption is in the best interest of each Debtor, its Estate,
and all parties in interest in the Chapter 11 Cases. Unless otherwise
determined by the Bankruptcy Court pursuant to a Final Order or agreed to by
the parties thereto prior to the Effective Date, no payments are required to
cure any defaults of the Debtors existing as of the Confirmation Date with
respect to each such insurance policy or agreement. To the extent that the
Bankruptcy Court determines otherwise as to any such insurance policy or
agreement, the Debtors reserve the right to seek rejection of such insurance
policy or agreement or other available relief. In accordance with Section 10.3
of the Plan, the rights under the insurance policies and agreements
constituting (i) the OC Asbestos Personal Injury Liability Insurance Assets
shall, to the extent necessary, be deemed assigned to the OC Sub-Account of
the Asbestos Personal Injury Trust as of the Effective Date and (ii) the FB
Asbestos Property Damage Insurance Assets shall, to the extent necessary, be
deemed assigned to the FB Asbestos Property Damage Trust as of the Effective
Date, and, pursuant to Section 365 of the Bankruptcy Code, the Debtors shall
have no further liability thereunder from and after June 18, 2001.
(b) Rejected Insurance Policies and Agreements.
To the extent that any or all of the insurance policies and
agreements set forth on Schedule XI, to be filed no later than five (5)
Business days prior to the Objection Deadline, are considered to be executory
contracts, then, notwithstanding anything contained in Section 7.1 or 7.3 of
the Plan to the contrary, the Plan shall constitute a motion to reject the
insurance policies and agreements set forth on Schedule XI, and the entry of
the Confirmation Order by the clerk of the Bankruptcy Court shall constitute
approval of such rejection pursuant to section 365(a) of the Bankruptcy Code
and a finding by the Bankruptcy Court that each such rejected insurance policy
or agreement set forth on Schedule XI is burdensome and that the rejection
thereof is in the best interest of each Debtor, its estate, and all parties in
interest in the Chapter 11 Cases.
(c) Reservation of Rights.
Nothing contained in the Plan, including this Section 7.6, shall
constitute a waiver of any claim, right, or cause of action that the Debtors,
the Asbestos Personal Injury Trust, the FB Asbestos Property Damage Trust, or
the Reorganized Debtors, as the case may be, may hold against the insurer
under any policy of insurance or insurance agreement.
ARTICLE VIII
PROVISIONS GOVERNING DISTRIBUTIONS
8.1 Distributions for Claims Allowed as of the Initial Distribution
Date
Except as otherwise provided herein or as ordered by the Bankruptcy
Court, distributions to be made on account of Claims that are Allowed Claims
as of the Initial Distribution Date shall be made on, or as soon as
practicable after, the Initial Distribution Date. Notwithstanding anything
herein to the contrary, distributions on account of (i) Class 7 and 8 Claims
shall be made in accordance with the terms or conditions of the Asbestos
Personal Injury Trust Agreement and the Asbestos Personal Injury Trust
Distribution Procedures, and (ii) Class 9 Claims shall be made in accordance
with the terms or conditions of the FB Asbestos Property Damage Trust
Agreement and the FB Asbestos Property Damage Trust Distribution Procedures.
Distributions on account of Claims that first become Allowed Claims after the
Effective Date shall be made pursuant to Section 9.4 of the Plan.
Notwithstanding the date on which any distribution of New OCD Securities is
actually made to a holder of a Claim that is an Allowed Claim on the Initial
Distribution Date , as of the date of the distribution such holder shall be
deemed to have the rights of a holder of such securities distributed as of the
Initial Distribution Date.
8.2 Interest on Claims
Unless otherwise specifically provided for in the Plan, the
Confirmation Order, or the Asbestos Personal Injury Trust Distribution
Procedures, or required by applicable bankruptcy law, post-petition interest
shall not accrue or be paid on Claims, and no holder of a Claim shall be
entitled to interest accruing on or after the 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.
8.3 Distributions under the Plan
(a) The Disbursing Agent or, in the case of the Bondholders Claims,
the appropriate Pre-petition Indenture Trustee, shall make all distributions
required under the Plan, except to holders of Asbestos Personal Injury Claims
and FB Asbestos Property Damage Claims. Asbestos Personal Injury Claims shall
be satisfied in accordance with the distribution procedures described in the
Asbestos Personal Injury Trust Agreement and the Asbestos Personal Injury
Trust Distribution Procedures. FB Asbestos Property Damage Claims shall be
satisfied in accordance with the distribution procedures described in the FB
Asbestos Property Damage Trust Agreement and the FB Asbestos Property Damage
Trust Distribution Procedures.
(b) If the Disbursing Agent is an independent third party designated
by the Reorganized Debtors to serve in such capacity, such Disbursing Agent
will be entitled to receive, without further Bankruptcy Court approval,
reasonable compensation for distribution services rendered pursuant to the
Plan as well as reimbursement of reasonable out-of-pocket expenses incurred in
connection with rendering such services from the Reorganized Debtors on terms
acceptable to the Reorganized Debtors. No Disbursing Agent will be required to
give any bond or surety or other security for the performance of its duties
unless otherwise ordered by the Bankruptcy Court.
8.4 Record Date for Distributions to Holders of Bank Holders Claims
and Bondholders Claims
At the close of business on the Distribution Record Date, the
transfer records for the Bank Holders Claims and Bondholders Claims will be
closed, and there shall be no further changes in the record holders of Bank
Holders Claims or Bondholders Claims. None of the Reorganized Debtors, the
Disbursing Agent, if any, CSFB, as agent for the Bank Holders nor the
applicable Pre-petition Indenture Trustee under the Pre-petition Bond
Indenture for the Bondholders will have any obligation to recognize any
transfer of Allowed Bank Holders Claims or Allowed Bondholders Claims, as
applicable, occurring after the Distribution Record Date, and they will be
entitled instead to recognize and deal for all purposes hereunder with only
those record holders as of the close of business on the Distribution Record
Date.
8.5 Means of Cash Payment
Cash payments made pursuant to the Plan will be in United States funds
by 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.
8.6 Fractional New OCD Common Stock; Other Distributions
(a) No fractional shares of New OCD Common Stock will be issued or
distributed under the Plan. If any distribution pursuant to the Plan would
otherwise result in the issuance of New OCD Common Stock that is not a whole
number, the actual distribution of shares of such stock shall be rounded to
the next higher or lower whole number as follows: (i) fractions of greater
than one-half (1/2) shall be rounded to the next higher whole number, and (ii)
fractions of one-half (1/2) or less shall be rounded to the next lower whole
number. The total number of shares of New OCD Common Stock and the Senior
Notes to be distributed pursuant to the Plan shall be adjusted as necessary to
account for the rounding provided for herein.
(b) No consideration shall be provided in lieu of fractional shares
that are rounded down. The Senior Notes will only be issued with a principal
amount in multiples of $1,000 or integral multiples thereof. The principal
amount of the Senior Notes that would have been distributed in amounts of
other than $1,000 shall be rounded as follows: (i) amounts equal to or less
than $500 shall be reduced to $0.00 and (ii) amounts greater than $500 shall
be increased to $1,000.
(c) In addition, the payment of fractions of dollars shall not be
made. Whenever any payment of a fraction of a dollar under the Plan would
otherwise be called for, the actual payment made shall reflect a rounding of
the fraction to the nearest whole dollar (up and down), with half dollars
rounded down.
(d) The Disbursing Agent, or any agent or servicer, as the case may
be, shall not make any payment of less than thirty dollars ($30.00) with
respect to any Claim.
8.7 Delivery of Distributions
Distributions to holders of Allowed Claims in Classes 1, 2A, 2B, 3,
4, 5 and 6, shall be made by the Disbursing Agent or the applicable
Pre-petition Indenture Trustee, as the case may be. If any holder's
distribution is returned as undeliverable, no further distributions to such
holder shall be made until the Disbursing Agent (or Pre-petition Indenture
Trustee as applicable) is notified of such holder's then current address, at
which time all missed distributions shall be made to such holder without
interest. Amounts in respect of undeliverable distributions made by the
Disbursing Agent (or the Pre-petition Indenture Trustee as applicable) shall
be returned to the Reorganized Debtors until such distributions are claimed.
All the claims for undeliverable distributions made by the Disbursing Agent or
the Pre-petition Indenture Trustee, as the case may be, must be made on or
before the first (1st) anniversary of the Effective Date, after which date all
unclaimed property shall revert to the Reorganized Debtors free of any
restrictions thereon and the claim 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. Nothing
contained in the Plan shall require the Debtors, Reorganized Debtors, any
Disbursing Agent, the Administrative Agent for the Bank Holders or any
Pre-petition Indenture Trustee to attempt to locate any holder of an Allowed
Claim.
8.8 Surrender of Pre-petition Bonds
(a) Pre-petition Bonds
Except as provided in Section 8.8(b) hereof in connection with lost,
stolen, mutilated or destroyed Pre-petition Bonds, each holder of an Allowed
Claim evidenced by a Pre-petition Bond shall tender such Pre-petition Bond to
the respective Pre-petition Indenture Trustee in accordance with written
instructions to be provided in a letter of transmittal to such holders by the
Pre-petition Indenture Trustee as promptly as practicable following the
Effective Date. Such letter of transmittal shall specify that delivery of such
Pre-petition Bonds will be effected, and risk of loss and title thereto will
pass, only upon the proper delivery of such Pre-petition Bonds with the letter
of transmittal in accordance with such instructions. Such letter of
transmittal shall also include, among other provisions, customary provisions
with respect to the authority of the holder of the applicable note or
Pre-petition Bonds to act and the authenticity of any signatures required on
the letter of transmittal. All surrendered Pre-petition Bonds shall be marked
as cancelled and delivered by the respective Pre-petition Indenture Trustee to
the Reorganized Debtors.
(b) Lost, Mutilated or Destroyed Pre-petition Bonds
In addition to any requirements under the applicable certificate or
articles of incorporation or bylaws of the applicable Debtor, any holder of
indebtedness or obligation of a Debtor evidenced by a Pre-petition Bond that
has been lost, stolen, mutilated or destroyed shall, in lieu of surrendering
the Pre-petition Bond, deliver to the Pre-petition Indenture Trustee (i)
evidence satisfactory to the Pre-petition Indenture Trustee of the loss,
theft, mutilation or destruction; and (ii) such indemnity as may be required
by the Pre-petition Indenture Trustee to hold the Pre-petition Indenture
Trustee harmless from any damages, liabilities or costs incurred in treating
such individual as a holder of a Pre-petition Bond.
(c) Failure to Surrender Cancelled Pre-petition Bonds
Any holder of a Pre-petition Bond that fails to surrender or be
deemed to have surrendered such Pre-petition Bond before the first (1st)
anniversary of the Effective Date shall have its Claim for a distribution on
account of such Pre-petition Bond discharged and shall be forever barred from
asserting any such Claim against any Reorganized Debtor or their respective
property.
(d) Distributions upon Receipt of Pre-petition Bonds
No distribution of property under the Plan shall be made to or on
behalf of any such holders unless and until such Pre-petition Bond is received
by the appropriate Pre-petition Indenture Trustee, or the unavailability of
such Pre-petition Bond is established to the reasonable satisfaction of the
appropriate Pre-petition Indenture Trustee or such requirement is waived by
the Reorganized Debtors.
8.9 Withholding and Reporting Requirements
In connection with the Plan and all distributions thereunder, the
Disbursing Agent shall, to the extent applicable, comply with all tax
withholding and backup withholding and reporting requirements imposed by any
federal, state, provincial, local or foreign taxing authority, and all
distributions thereunder 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.
8.10 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 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 Reorganized Debtors may have
against such holder.
ARTICLE IX
PROCEDURES FOR RESOLVING DISPUTED,
CONTINGENT AND UNLIQUIDATED CLAIMS AND DISPUTED INTERESTS
9.1 Prosecution of Objections to Certain Claims
(a) Unless otherwise ordered by the Bankruptcy Court, only the
Debtors, the Reorganized Debtors or the Disbursing Agent shall have the
authority to file objections to settle, compromise, withdraw or litigate
objections to Claims, other than with respect to (i) the applications for the
allowance of compensation and reimbursement of expenses of professionals under
Section 330 of the Bankruptcy Code, (ii) Asbestos Personal Injury Claims, and
(iii) FB Asbestos Property Damage Claims.
(b) From and after the Confirmation Date, the Reorganized Debtors or
the Disbursing Agent may settle or compromise any Disputed Claim without
approval of the Bankruptcy Court.
(c) All objections to Claims, other than Asbestos Personal Injury
Claims and FB Asbestos Property Damage Claims, must be filed and served on the
holders of such Claims by the Claims Objection Deadline. Nothing contained
herein, however, shall limit the Debtors' or Reorganized Debtors' right to
object to any Claims, other than Asbestos Personal Injury Claims and FB
Asbestos Property Damage Claims filed or amended after the Claims Objection
Deadline. If an objection has not been filed to a Proof of Claim or a
scheduled Claim, other than Asbestos Personal Injury Claims and FB Asbestos
Property Damage Claims, by the Claims Objection Deadline, the Claim to which
the Proof of Claim or scheduled Claim relates will be treated as an Allowed
Claim if such Claim has not been Allowed earlier.
9.2 No Distributions Pending Allowance
Notwithstanding any other provision in this Plan, no payments or
distributions shall be made with respect to all or any portion of a Disputed
Claim unless and until all objections to such Disputed Claim have been settled
or withdrawn or have been determined by Final Order, and the Disputed Claim, or
some portion thereof, has become an Allowed Claim.
9.3 Disputed Distribution Reserve
(a) The Disbursing Agent shall establish appropriate reserves for
Disputed Claims by withholding the lesser of (i) 100% of distributions to
which holders of Disputed Claims would be entitled under the Plan if such
Disputed Claims were Allowed Claims, or (ii) such other amount as may be
approved by the Bankruptcy Court.
(b) On, or as soon as practicable after, the Initial Distribution
Date, the Reorganized Debtors shall transmit to the Disbursing Agent, and the
Disbursing Agent shall reserve for the account of each holder of a Disputed
Claim, (i) Cash, Senior Notes, New OCD Common Stock, or such other property
which would otherwise be distributable to such holder on such date in
accordance with the Plan were such Disputed Claim an Allowed Claim on such
date, in the Face Amount thereof, or (ii) Cash, Senior Notes, New OCD Common
Stock, or such other property of a lesser value as such holder and the
Reorganized Debtors may agree. Cash, Senior Notes, New OCD Common Stock, or
such other property reserved under this Section 9.3(b) shall be set aside and
segregated by Class of Claims and, in the case of Cash, Cash dividends or Cash
payments in respect thereof, to the extent practicable, held by the Disbursing
Agent in an interest bearing escrow fund (which may be a single account for
each Class, provided, that separate book entries for each Claim are maintained
by the Disbursing Agent) to be established and maintained by the Disbursing
Agent pending resolution of such Disputed Claims.
9.4 Distributions on Account of Disputed Claims Once They are Allowed
On each Quarterly Distribution Date, the Reorganized Debtor shall
make payments and distributions from the reserve established for Disputed
Claims to each holder of a Disputed Claim that has become an Allowed Claim
during the preceding calendar quarter. After the date that the order or
judgment of the Bankruptcy Court allowing such Claim becomes a Final Order,
the Reorganized Debtors shall distribute to the holder of such Claim any
property in the reserve established for Disputed Claims that would have been
distributed to the holder of such claim had such Claim been an Allowed Claim.
Such distributions will be made pursuant to the provisions of Article III
governing the applicable Class. Holders of such Claims that are ultimately
Allowed will also be entitled to receive, on the basis of the amount
ultimately Allowed, the amount of any dividends or other distributions
received on account of the property in reserve between the Effective Date and
the date such distribution is made to such holder of Claim.
ARTICLE X
THE ASBESTOS PERSONAL INJURY TRUST
10.1 The Asbestos Personal Injury Trust
The Asbestos Personal Injury Trust is intended to be a "qualified
settlement fund" within the meaning of Section 468B of the Internal Revenue
Code. Pursuant to the Asbestos Personal Injury Trust Agreement, the Asbestos
Personal Injury Trust will have two separate sub-accounts: the OC Sub-Account
and the FB Sub-Account. The purpose of the Asbestos Personal Injury Trust
shall be to, among other things, (i) process, liquidate, and pay all Asbestos
Personal Injury Claims in accordance with the Plan, the Asbestos Personal
Injury Trust Distribution Procedures, and the Confirmation Order and (ii)
preserve, hold, manage, and maximize the assets of the Asbestos Personal
Injury Trust (including both the OC Sub-Account and the FB Sub-Account) for
use in paying and satisfying Asbestos Personal Injury Claims. The Asbestos
Personal Injury Trust shall comply in all respects with the requirements set
forth in Section 524(g)(2)(B)(i) of the Bankruptcy Code.
10.2 Appointment of Asbestos Personal Injury Trustees
On the Confirmation Date, effective as of the Effective Date, the
Bankruptcy Court shall appoint the individuals selected jointly by the
Asbestos Claimants' Committee and the Future Claimants' Representative (as
identified in the Asbestos Personal Injury Trust Agreement), which individuals
shall be appointed to serve as the Asbestos Personal Injury Trustees for the
Asbestos Personal Injury Trust.
10.3 Transfers of Property to the Asbestos Personal Injury Trust
(a) Transfer of the Plan Consideration to the OC Sub-Account of the
Asbestos Personal Injury Trust
On the Effective Date, or as soon as practicable thereafter, the
Reorganized Debtors shall irrevocably transfer and assign to the Asbestos
Personal Injury Trust for allocation to the OC Sub-Account the following: (i)
(a) if Class 4 accepts the Plan, the portion of the Combined Net Distribution
Package equal to the Class 7 Initial Distribution Percentage; or (b) if Class
4 rejects the Plan, the portion of the Combined Distribution Package equal to
the Class 7 Initial Distribution Percentage, and in addition and in any event,
(ii) the OC Asbestos Personal Injury Liability Insurance Assets and (iii) the
OCD Insurance Escrow.
On or as soon as reasonably practicable after the Final Distribution
Date, the Reorganized Debtors shall irrevocably transfer and assign to the
Asbestos Personal Injury Trust for allocation to the OC Sub-Account the
following: (i) Cash in an amount equal to the Class 7 Final Distribution
Percentage of Excess Available Cash, (ii) Excess Senior Notes in an aggregate
principal amount equal to the Class 7 Final Distribution Percentage of the
Excess Senior Notes Amount, (iii) shares of New OCD Common Stock in an
aggregate number equal to the Class 7 Final Distribution Percentage of the
Excess New OCD Common Stock, and (iv) Cash in an amount equal to the Class 7
Final Distribution Percentage of the Excess Litigation Trust Recoveries.
The Reorganized Debtors will also execute and deliver to the Asbestos
Personal Injury Trust such documents as the Asbestos Personal Injury Trustees
reasonably request to issue the Distributable Shares to be distributed to the
Asbestos Personal Injury Trust in the name of the Asbestos Personal Injury
Trust or a nominee and transfer and assign to the Asbestos Personal Injury
Trust all other assets which constitute the assets of the Asbestos Personal
Injury Trust.
(b) Transfer of the Plan Consideration to the FB Sub-Account of the
Asbestos Personal Injury Trust
On the Effective Date, or as soon as practicable thereafter, the
Reorganized Debtors shall irrevocably transfer and assign to the Asbestos
Personal Injury Trust for allocation to the FB Sub-Account the following: (i)
the FB Reversions; (ii) the Committed Claims Account; and (iii) the FB
Sub-Account Settlement Payment.
The Reorganized Debtors will, or will use all commercially reasonable
efforts to, cause the trustees of the Fibreboard Insurance Settlement Trust to
irrevocably transfer and assign (i) the Existing Fibreboard Insurance
Settlement Trust Assets, and (ii) any and all of the Fibreboard Insurance
Settlement Trust's rights in the FB Reversions, to the Asbestos Personal
Injury Trust, for allocation to the FB Sub-Account, on the Effective Date or
as soon as practicable thereafter.
The Reorganized Debtors will also execute and deliver, or will use
all commercially reasonable efforts to cause the trustees of the Fibreboard
Insurance Settlement Trust to execute and deliver, to the Asbestos Personal
Injury Trust such documents as the Asbestos Personal Injury Trustees
reasonably request in connection with the transfer and assignment of the
Existing Fibreboard Insurance Settlement Trust Assets and the FB Reversions.
(c) Transfer of Books and Records to the Asbestos Personal Injury
Trust
On the Effective Date, or as soon thereafter as is practicable, at
the sole cost and expense of the Asbestos Personal Injury Trust and in
accordance with written instructions provided to the Reorganized Debtors by
the Asbestos Personal Injury Trust, the Reorganized Debtors will transfer and
assign, and will use all commercially reasonable efforts to cause the trustees
of the Fibreboard Insurance Settlement Trust to transfer and assign, to the
Asbestos Personal Injury Trust all books and records of the Debtors and the
Fibreboard Insurance Settlement Trust that pertain directly to Asbestos
Personal Injury Claims that have been asserted against the Debtors and/or the
Fibreboard Insurance Settlement Trust. The Debtors will request that the
Bankruptcy Court, in the Confirmation Order, rule that such transfers shall
not result in the invalidation or waiver of any applicable privileges
pertaining to such books and records.
10.4 Assumption of Certain Liabilities by the Asbestos Personal
Injury Trust
(a) OC Asbestos Personal Injury Claims
In consideration for the property transferred to the Asbestos
Personal Injury Trust for allocation to the OC Sub-Account, and in furtherance
of the purposes of the Asbestos Personal Injury Trust and the Plan, the
Asbestos Personal Injury Trust will assume all liability and responsibility
for (i) all OC Asbestos Personal Injury Claims and the Reorganized Debtors
shall have no further financial or other responsibility or liability therefor.
The Asbestos Personal Injury Trust shall also assume all liability for
premiums, deductibles, retrospective premium adjustments, security or
collateral arrangements, or any other charges, costs, fees, or expenses (if
any) that become due to any insurer in connection with (i) the OC Asbestos
Personal Injury Liability Insurance Assets as a result of OC Asbestos Personal
Injury Claims, (ii) asbestos-related personal injury claims against Persons
insured under policies included in the OC Asbestos Personal Injury Liability
Insurance Assets by reason of vendors' endorsements, or (iii) the
indemnification provisions of settlement agreements that OC made prior to the
Confirmation Date with any insurers, to the extent that those indemnity
provisions relate to Asbestos Personal Injury Claims, and the Reorganized
Debtors shall have no further financial or other responsibility or liability
for any of the foregoing.
(b) FB Asbestos Personal Injury Claims
In consideration for the property transferred to the Asbestos
Personal Injury Trustees for allocation to the FB Sub-Account, and in
furtherance of the purposes of the Asbestos Personal Injury Trust and the
Plan, the Asbestos Personal Injury Trust will assume all liability and
responsibility for all FB Asbestos Personal Injury Claims and the Reorganized
Debtors shall have no further financial or other responsibility or liability
therefor.
10.5 Certain Property Held in Trust by the Reorganized Debtors or the
Fibreboard Insurance Settlement Trust
If and to the extent that any assets, claims, rights or other
property of the Reorganized Debtors or of the Fibreboard Insurance Settlement
Trust to be transferred to the Asbestos Personal Injury Trust, under
applicable law or any binding contractual provision, cannot be effectively
transferred, or if for any reason after the Effective Date the Reorganized
Debtors or the trustees of the Fibreboard Insurance Settlement Trust, as the
case may be, shall retain or receive any assets, claims, rights or other
property that is owned by the Reorganized Debtors, the Debtors or the
Fibreboard Insurance Settlement Trust (as the case may be) and is to be
transferred pursuant to the Plan, then the Reorganized Debtors or the trustees
of the Fibreboard Insurance Settlement Trust, as the case may be, shall hold
such property (and any proceeds thereof) in trust for the benefit of the party
entitled to receive the transfer of such asset under the Plan (or the benefit
of such asset) and will take such actions with respect to such property (and
any proceeds thereof) as such party entitled to receive the transfer of such
asset under the Plan (or the benefit of such asset) shall direct in writing.
10.6 Cooperation with Respect to Insurance Matters
The Reorganized Debtors shall cooperate with the Asbestos Personal
Injury Trust and use commercially reasonable efforts to take or cause to be
taken all appropriate actions and to do or cause to be done all things
necessary or appropriate to effectuate the transfer of the OC Asbestos
Personal Injury Liability Insurance Assets to the Asbestos Personal Injury
Trust for allocation to the OC Sub-Account. By way of enumeration and not of
limitation, the Reorganized Debtors shall be obligated (i) to provide the
Asbestos Personal Injury Trust with copies of insurance policies and
settlement agreements included within or relating to the OC Asbestos Personal
Injury Liability Insurance Assets; (ii) to provide the Asbestos Personal
Injury Trust with information necessary or helpful to the Asbestos Personal
Injury Trust in connection with its efforts to obtain insurance coverage for
Asbestos Personal Injury Claims; and (iii) to execute further assignments or
allow the Asbestos Personal Injury Trust to pursue claims relating to the OC
Asbestos Personal Injury Liability Insurance Assets in its name (subject to
appropriate disclosure of the fact that the Asbestos Personal Injury Trust is
doing so and the reasons why it is doing so), including by means of
arbitration, alternative dispute resolution proceedings or litigation, to the
extent necessary or helpful to the efforts of the Asbestos Personal Injury
Trust to obtain insurance coverage under the OC Asbestos Personal Injury
Liability Insurance Assets for Asbestos Personal Injury Claims. The Asbestos
Personal Injury Trust shall be obligated to compensate the Reorganized OCD for
costs reasonably incurred in connection with providing assistance to the
Asbestos Personal Injury Trust pursuant to this Section 10.6, including,
without limitation, out-of-pocket costs and expenses, consultant fees, and
attorneys' fees.
10.7 Authority of the Debtors
On the Confirmation Date, the Debtors will be empowered and
authorized to take or cause to be taken, prior to the Effective Date, all
actions necessary to enable them to implement effectively the provisions of
the Plan and the Asbestos Personal Injury Trust Agreement.
ARTICLE XI
FB ASBESTOS PROPERTY DAMAGE TRUST
11.1 The FB Asbestos Property Damage Trust
Effective as of the later of (i) the date the FB Asbestos Property
Damage Trustee has executed the FB Asbestos Property Damage Trust Agreement
and (ii) the Effective Date, the FB Asbestos Property Damage Trust shall be
created. The FB Asbestos Property Damage Trust is intended to be a "qualified
settlement fund" within the meaning of Treasury Regulations Section 1.468B-1,
et seq., promulgated under Section 468B of the IRC. The purpose of the FB
Asbestos Property Damage Trust shall be to, among other things, (i) process,
liquidate, and pay all FB Asbestos Property Damage Claims in accordance with
the Plan, the FB Asbestos Property Damage Trust Distribution Procedures, and
the Confirmation Order and (ii) preserve, hold, manage, and maximize the
assets of the FB Asbestos Property Damage Trust for use in paying and
satisfying FB Asbestos Property Damage Claims.
11.2 Appointment of FB Asbestos Property Damage Trustee
On the Confirmation Date, effective as of the Effective Date, the
Bankruptcy Court shall appoint the individual selected jointly by the Plan
Proponents (as identified in the FB Asbestos Property Damage Trust Agreement),
which individual shall be appointed to serve as the FB Asbestos Property Damage
Trustee for the FB Asbestos Property Damage Trust.
11.3 Transfer of Certain Property to the FB Asbestos Property Damage
Trust
(a) Transfer of Books and Records
On the Effective Date, or as soon thereafter as is practicable, at
the sole cost and expense of the FB Asbestos Property Damage Trust and in
accordance with written instructions provided to the Reorganized Debtors by
the FB Asbestos Property Damage Trust, the Reorganized Debtors will transfer
and assign to the FB Asbestos Property Damage Trust copies of all books and
records of the Debtors that pertain directly to FB Asbestos Property Damage
Claims that have been asserted against the Debtors and/or the Fibreboard
Insurance Settlement Trust. The Debtors will request that the Bankruptcy
Court, in the Confirmation Order, rule that such transfers shall not result in
the invalidation or waiver of any applicable privileges pertaining to such
books and records.
(b) Transfer of Certain Property to the FB Asbestos Property Damage
Trust
On the later of the Effective Date and the date by which the FB
Asbestos Property Damage Trustee has executed the FB Asbestos Property Damage
Trust Agreement, the Reorganized Debtors shall transfer and assign, or cause to
be transferred and assigned, the FB Asbestos Property Damage Insurance Assets to
the FB Asbestos Property Damage Trust.
11.4 Assumption of Certain Liabilities by the FB Asbestos Property
Damage Trust
In consideration for the property transferred to the FB Asbestos
Property Damage Trust pursuant to Section 11.3 hereof, and in furtherance of
the purposes of the FB Asbestos Property Damage Trust and the Plan, the FB
Asbestos Property Damage Trust shall assume all liability and responsibility
for all FB Asbestos Property Damage Claims, and the Reorganized Debtors shall
have no further financial or other responsibility or liability therefor. The
FB Asbestos Property Damage Trust shall also assume all liability for
premiums, deductibles, retrospective premium adjustments, security or
collateral arrangements, or any other charges, costs, fees, or expenses (if
any) that become due to any insurer in connection with the FB Asbestos
Property Damage Insurance Assets as a result of FB Asbestos Property Damage
Claims, asbestos-related property damage claims against Persons insured under
policies included in the FB Asbestos Property Damage Insurance Assets by
reason of vendors' endorsements, or under the indemnity provisions of
settlement agreements that the Debtors made with any insurers prior to the
Confirmation Date to the extent that those indemnity provisions relate to FB
Asbestos Property Damage Claims, and the Reorganized Debtors shall have no
further financial or other responsibility or liability for any of the
foregoing; provided, however, that such liability of the FB Asbestos Property
Damage Trust shall be limited to the extent of the benefits of such Trust, as
reasonably determined by the Trustee of such Trust, so that the Trust may
elect to terminate such liability in the event that the Trustee determines the
benefits of maintaining the insurance policies are no longer worth the costs.
11.5 Cooperation with Respect to Insurance Matters
The Reorganized Debtors shall cooperate with the FB Asbestos Property
Damage Trust and use commercially reasonable efforts to take or cause to be
taken all appropriate actions and to do or cause to be done all things
necessary or appropriate to effectuate the transfer of the FB Asbestos
Property Damage Insurance Assets to the FB Asbestos Property Damage Trust. By
way of enumeration and not of limitation, the Reorganized Debtors shall be
obligated (i) to provide the FB Asbestos Property Damage Trust with copies of
insurance policies and settlement agreements included within or relating to
the FB Asbestos Property Damage Insurance Assets; (ii) to provide the FB
Asbestos Property Damage Trust with information necessary or helpful to the FB
Asbestos Property Damage Trust in connection with its efforts to obtain
insurance coverage for FB Asbestos Property Damage Claims; and (iii) to
execute further assignments or allow the FB Asbestos Property Damage Trust to
pursue claims relating to the FB Asbestos Property Damage Insurance Assets in
its name (subject to appropriate disclosure of the fact that the FB Asbestos
Property Damage Trust is doing so and the reasons why it is doing so),
including by means of arbitration, alternative dispute resolution proceedings
or litigation, to the extent necessary or helpful to the efforts of the FB
Asbestos Property Damage Trust to obtain insurance coverage under the FB
Asbestos Property Damage Insurance Assets for FB Asbestos Property Damages
Claims. The FB Asbestos Property Damage Trust shall be obligated to compensate
the Reorganized Debtors for costs reasonably incurred in connection with
providing assistance to the FB Asbestos Property Damage Trust pursuant to this
Section 11.5, including without limitation, out-of-pocket costs and expenses,
consultant fees, and attorneys' fees.
11.6 Authority of the Debtors
On the Confirmation Date, the Debtors will be empowered and
authorized to take or cause to be taken, prior to the Effective Date, all
actions necessary to enable them to implement effectively the provisions of
the Plan and the FB Asbestos Property Damage Trust Agreement.
ARTICLE XII
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
12.1 Conditions to Confirmation
The Plan will not be confirmed, and the Confirmation Order will not
be entered, until and unless the Confirmation Conditions set forth below have
been satisfied or waived by the Plan Proponents. These Confirmation Conditions
are designed to, inter alia, ensure that the Asbestos Personal Injury
Permanent Channeling Injunction will be effective, binding and enforceable and
will be based on the following general findings of the Bankruptcy Court, each
of which will be contained in the Confirmation Order in form and substance
acceptable to the Plan Proponents:
(a) The Asbestos Personal Injury Permanent Channeling Injunction
is to be implemented in connection with the Asbestos Personal Injury Trust and
the Plan.
(b) At the time of the order for relief with respect to OC and
Fibreboard, OC and Fibreboard had been named as defendants in personal injury,
wrongful death or property damage actions seeking recovery for damages
allegedly caused by the presence of, or exposure to, asbestos or
asbestos-containing products.
(c) The Asbestos Personal Injury Trust, as of the Effective
Date, will assume the liabilities of all of the OC Persons with respect to OC
Asbestos Personal Injury Claims, and upon such assumption, the Reorganized
Debtors and the OC Persons shall have no liability for any OC Asbestos
Personal Injury Claims.
(d) The Asbestos Personal Injury Trust, as of the Effective
Date, will assume the liabilities of all of the FB Persons with respect to FB
Asbestos Personal Injury Claims, and, upon such assumption, the Reorganized
Debtors and the FB Persons shall have no liability for any FB Asbestos
Personal Injury Claims.
(e) The OC Sub-Account of the Asbestos Personal Injury Trust is
to be funded in whole or in part with Cash, Senior Notes, New OCD Common
Stock, the OCD Insurance Escrow, the OC Asbestos Personal Injury Liability
Insurance Assets, distributable proceeds of the Litigation Trust Assets, and
by the obligation of Reorganized OCD to make future payments, including
dividends.
(f) The FB Sub-Account is to be funded in whole or in part with
the Existing Fibreboard Insurance Settlement Trust Assets, the FB Reversions,
the Committed Claims Account, and the FB-Sub-Account Settlement Payment.
(g) The Asbestos Personal Injury Trust is to own, upon the
Initial Distribution Date, a majority of the voting shares of Reorganized OCD.
(h) In light of the benefits provided, or to be provided, to the
Asbestos Personal Injury Trust on behalf of each Protected Party, the Asbestos
Personal Injury Permanent Channeling Injunction is fair and equitable with
respect to the persons that might subsequently assert Asbestos Personal Injury
Claims against any Protected Party.
(i) Reorganized OCD and Reorganized Fibreboard are likely to be
subject to substantial Demands for payment arising out of the same or similar
conduct or events that gave rise to (a) OC Asbestos Personal Injury Claims and
(b) FB Asbestos Personal Injury Claims, respectively, that are addressed by
the Asbestos Personal Injury Permanent Channeling Injunction.
(j) The actual amounts, numbers, and timing of such Demands
cannot be determined.
(k) Pursuit of such Demands outside the procedures prescribed by
the Plan is likely to threaten the Plan's purpose to deal equitably with
Claims and Demands.
(l) The terms of the Asbestos Personal Injury Permanent
Channeling Injunction, including any provisions barring actions against the
Protected Parties pursuant to Section 524(g)(4)(A), are set forth in the Plan
and in any disclosure statement supporting the Plan.
(m) The Plan establishes, in Classes 7 and 8, separate Classes
of claimants whose Claims are to be addressed by the Asbestos Personal Injury
Trust.
(n) Class 7 and Class 8 claimants have each voted, by at least
75 percent (75%) of those voting, in favor of the Plan.
(o) Pursuant to court orders or otherwise, the Asbestos Personal
Injury Trust will operate through mechanisms such as structured, periodic or
supplemental payments, pro rata distributions, matrices or periodic review of
estimates of the numbers and values of present Claims and Demands, or other
comparable mechanisms, that provide reasonable assurance that the Asbestos
Personal Injury Trust will value, and be in a financial position to pay,
present Claims and Demands that involve similar Claims in substantially the
same manner.
(p) The Future Claimants' Representative was appointed as part
of the proceedings leading to the issuance of the Asbestos Personal Injury
Permanent Channeling Injunction for the purpose of protecting the rights of
persons that might subsequently assert Demands of the kind that are addressed
in the Asbestos Personal Injury Permanent Channeling Injunction and channeled
to and assumed by the Asbestos Personal Injury Trust. The Future Claimants'
Representative has in all respects fulfilled his duties, responsibilities, and
obligations as the future representative in accordance with Section 524(g) of
the Bankruptcy Code.
(q) Identifying or describing each Protected Party in the
Asbestos Personal Injury Permanent Channeling Injunction is fair and equitable
with respect to persons that might subsequently assert Demands against each
such Protected Party, in light of the benefits provided, or to be provided, to
the Asbestos Personal Injury Trust by or on behalf of any such Protected
Party.
(r) The Plan complies in all respects with Section 524(g) of the
Bankruptcy Code.
(s) The Asbestos Personal Injury Trust is to use its assets and
income to pay Asbestos Personal Injury Claims.
(t) With respect to any Asbestos Personal Injury Claim that is
Allowed by the Asbestos Personal Injury Trust in accordance with the Asbestos
Personal Injury Trust Agreement and the Asbestos Personal Injury Trust
Distribution Procedures, such allowance shall establish the amount of legal
liability against the Asbestos Personal Injury Trust in the Allowed amount of
such Asbestos Personal Injury Claim.
(u) With respect to any FB Asbestos Property Damage Claim that
is Allowed in accordance with the FB Asbestos Property Damage Trust Agreement
and the FB Asbestos Property Damage Trust Distribution Procedures by the
Bankruptcy Court, other court of competent jurisdiction or otherwise, such
allowance shall establish the amount of legal liability against the FB
Asbestos Property Damage Trust in the Allowed amount of such FB Asbestos
Property Damage Claim.
(v) The Plan and its Exhibits constitute a fair, equitable, and
reasonable resolution of the liabilities of the Debtors for Asbestos Personal
Injury Claims.
(w) The Plan and its Exhibits, and the negotiations that led up
to them, do not violate any obligation of the Debtors or breach any applicable
insurance policy, agreement or contract of the Debtors, including, without
limitation, obligations or duties to cooperate under any insurance policies,
contracts or agreements, any management of claims provisions in any applicable
insurance policies or agreements or contracts pertaining thereto, or any
consent-to-assignment provisions of any applicable insurance policies,
contracts or agreements, or any consent-to-settlement provisions of any
applicable insurance policies, agreement or contract of the Debtors, and the
discharge and release of Claims as provided herein shall neither diminish nor
impair the enforceability of any such insurance policies, contracts or
agreements.
(x) The Debtors do not need the consent of their insurers to
transfer the OC Asbestos Personal Injury Liability Insurance Assets to the OC
Sub-Account of the Asbestos Personal Injury Trust. Alternatively, the Debtors'
insurers have an obligation not to withhold consent to such transfer
unreasonably, and the refusal to consent to such transfer under the
circumstances would be unreasonable.
(y) The Debtors do not need the consent of their insurers to
transfer the FB Asbestos Property Damage Insurance Assets to the FB Asbestos
Property Damage Trust. Alternatively, the Debtors' insurers have an obligation
not to withhold consent to such transfer unreasonably, and the refusal to
consent to the transfer under the circumstances would be unreasonable.
(z) The Plan and its Exhibits do not materially increase any
insurer's risk of providing coverage for asbestos-related liabilities under
the relevant insurance policies, settlement agreements, and/or contracts with
respect thereto as compared to the risk that otherwise was being borne by the
insurers prior to the Effective Date.
(aa) Upon confirmation and consummation of the Plan, including
the effectuation of the transfer of the OC Asbestos Personal Injury Liability
Insurance Assets, the OC Sub-Account of the Asbestos Personal Injury Trust
shall have access to insurance coverage and/or insurance payments pursuant to
the transfer of the OC Asbestos Personal Injury Liability Insurance Assets so
that the proceeds of such insurance may be used to defend, resolve, and
satisfy (subject to any applicable policy limits) the Asbestos Personal Injury
Trust's obligations to defend, resolve and satisfy Asbestos Personal Injury
Claims, and no insurer shall have any insurance coverage defense based on the
Plan, the transfer of the OC Asbestos Personal Injury Liability Insurance
Assets, the Asbestos Personal Injury Trust Agreement, or the Asbestos Personal
Injury Trust Distribution Procedures or allowance of claims thereunder, or the
negotiations that produced any of the foregoing.
(bb) Upon confirmation and consummation of the Plan, including
the effectuation of the transfer of the FB Asbestos Property Damage Insurance
Assets, the FB Asbestos Property Damage Trust shall have access to insurance
coverage and/or insurance payments pursuant to the transfer of the FB Asbestos
Property Damage Insurance Assets so that the proceeds of such insurance may be
used to defend, resolve, and satisfy (subject to any applicable policy limits)
the FB Asbestos Property Damage Trust's obligations to defend, resolve and
satisfy FB Asbestos Property Damage Claims, and no insurer shall have any
insurance coverage defense based on the Plan, the transfer of the FB Asbestos
Property Damage Insurance Assets, the FB Asbestos Property Damage Trust
Agreement, or the FB Asbestos Property Damage Trust Distribution Procedures or
allowance of claims thereunder, or the negotiations that produced any of the
foregoing.
(cc) All insurers of the Debtors affording insurance coverage
that is the subject of the OC Asbestos Personal Injury Insurance Assets and
all insurers of the Debtors whose policies provide coverage for the FB
Asbestos Property Damage Claims have been given notice and an opportunity to
be heard on matters relating to the Plan and its Exhibits, and are bound by
the Plan and its Exhibits and the findings of fact and conclusions of law set
forth in the Confirmation Order.
(dd) If an Impaired Class of Claims votes to reject the Plan,
the sum of the Class 7 Aggregate Amount and the Class 8 Aggregate Amount as
determined by the Bankruptcy Court and the District Court shall be an amount
not less than $16 billion prior to the deductions of (a) the OCD Insurance
Escrow, (b) the OC Asbestos Personal Injury Liability Insurance Assets, (c)
the Existing Fibreboard Insurance Settlement Trust Assets, (d) the FB
Reversions and (e) the Committed Claims Account.
(ee) Class 6 Claims shall be Allowed or estimated in such
maximum aggregate amount as the Plan Proponents shall agree and have filed at
least five (5) Business Days prior to the Objection Deadline.
12.2 Conditions to Effective Date
The following are conditions precedent to the occurrence of the
Effective Date, each of which may be satisfied or waived in accordance with
Section 12.3 of the Plan:
(a) The Confirmation Order shall have been entered, shall have
become a Final Order, shall be in form and substance reasonably satisfactory
to the Plan Proponents.
(b) The Asbestos Personal Injury Permanent Channeling Injunction
shall be in full force and effect.
(c) All agreements or other instruments which are exhibits to
the Plan shall be in form and substance reasonably acceptable to the Plan
Proponents and shall have been executed and delivered.
(d) All actions, documents and agreements necessary to implement
the Plan shall have been effected or executed.
(e) The Asbestos Personal Injury Trustees shall have accepted
their appointment as Asbestos Personal Injury Trustees and shall have executed
the Asbestos Personal Injury Trust Agreement.
(f) The individuals designated to serve as members of the TAC
shall have accepted their appointment as TAC members.
(g) The Future Claimants' Representative shall have agreed to
continue to serve in such capacity following the Confirmation Date.
(h) The PLR with respect to the qualification of the trust
formed pursuant to Section 524(g) of the Bankruptcy Code described therein as
a "qualified settlement fund" within the meaning of Treasury Regulations
Section 1.468B-1, et seq., promulgated under Section 468B of the IRC, shall
not have been cancelled, withdrawn or revoked and shall remain in full force
and effect. Alternatively, the Reorganized Debtors shall have received an
opinion of counsel with respect to the tax status of the Asbestos Personal
Injury Trust as a "qualified settlement fund" reasonably satisfactory to the
Plan Proponents, and, (i) if Class 4 accepts the Plan, the Bank Holders,
and/or (ii) if Class 6 accepts the Plan, the Unsecured Creditors' Committee.
(i) The FB Asbestos Property Damage Trustee shall have accepted
his appointment as FB Asbestos Property Damage Trustees and shall have
executed the FB Asbestos Property Damage Trust Agreement.
(j) The Reorganized Debtors shall have entered into and shall
have credit availability under the Exit Facility in an amount sufficient to
meet the needs of Reorganized Debtors, as determined by the Plan Proponents.
(k) Each of the Exhibits shall be in form and substance
acceptable to the Plan Proponents.
(l) The Existing Fibreboard Insurance Settlement Trust Assets
will be irrevocably assigned and transferred on the Effective Date to the
Asbestos Personal Injury Trust, for allocation to the FB Sub-Account, or the
Existing Fibreboard Insurance Settlement Trust Assets will be treated in
accordance with Section 10.5.
12.3 Waiver of Conditions
Notwithstanding anything contained in Section 12.2 hereof, the Plan
Proponents reserve, in their sole discretion, the right, with the written
consent of (i) if Class 4 accepts the Plan, the Bank Holders, and/or (ii) if
Classes 4, 5 and 6 all accept the Plan, the Unsecured Creditors' Committee, to
waive the occurrence of any of the foregoing conditions precedent to the
Effective Date or to modify any of such conditions precedent. Any such written
waiver of a condition precedent set forth in this section may be effected at
any time, without notice, without leave or order of the Bankruptcy Court, and
without any formal action other than proceeding to consummate the Plan. Any
actions required to be taken on the Effective Date shall take place and shall
be deemed to have occurred simultaneously, and no such action shall be deemed
to have occurred prior to the taking of any other such action. If the Plan
Proponents decide that one of the foregoing conditions cannot be satisfied,
and the occurrence of such condition is not waived in the manner set forth
above, then the Plan Proponents shall file a notice of the failure of the
Effective Date with the Bankruptcy Court, at which time the Plan and the
Confirmation Order shall be deemed null and void.
ARTICLE XIII
RETENTION OF JURISDICTION
13.1 Exclusive Jurisdiction of the Bankruptcy Court and District
Court
Pursuant to Sections 105(a) and 1142 of the Bankruptcy Code, and
notwithstanding entry of the Confirmation Order and occurrence of the
Effective Date, the District Court, together with the Bankruptcy Court to the
extent of any reference made to it by the District Court and the Reference
Order, will retain exclusive jurisdiction over all matters arising out of, and
related to, the Chapter 11 Cases and the Plan, including, among other things,
jurisdiction to:
(a) interpret, enforce, and administer the terms of the Asbestos
Personal Injury Trust Agreement (including all annexes and exhibits thereto),
and the restrictions on transfer of New OCD Common Stock and Asbestos Personal
Injury Claims contained in the Amended and Restated Certificate of
Incorporation of Reorganized OCD and the Confirmation Order;
(b) allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim (other than
an Asbestos Personal Injury Claim and an FB Asbestos Property Damage Claim) or
Interest not otherwise Allowed under the Plan, 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;
(c) hear and determine all applications for compensation and
reimbursement of expenses of professionals under the Plan or under Sections
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 shall be
made in the ordinary course of business and shall not be subject to the
approval of the Bankruptcy Court;
(d) 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;
(e) effectuate performance of and payments under the provisions
herein;
(f) 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 Cases;
(g) enter such orders as may be necessary or appropriate to
execute, implement, or consummate the provisions herein and all contracts,
instruments, releases, and other agreements or documents created in connection
with the Plan, the Disclosure Statement or the Confirmation Order;
(h) 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;
(i) 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;
(j) issue injunctions, enter and implement other orders, or take
such other actions as may be necessary or appropriate to restrain interference
by any entity with implementation, consummation, or enforcement of the Plan or
the Confirmation Order;
(k) 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;
(l) hear and determine any matters arising in connection with or
relating to the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release or other agreement or document created in
connection with the Plan, the Disclosure Statement or the Confirmation Order;
(m) enforce all orders, judgments, injunctions, releases,
exculpations, indemnifications and rulings entered in connection with the
Chapter 11 Cases;
(n) except as otherwise limited herein, recover all assets of
the Debtors and property of the Debtors' Estates, wherever located;
(o) hear and determine matters concerning state, local and
federal taxes in accordance with Sections 346, 505 and 1146 of the Bankruptcy
Code;
(p) hear and determine all disputes involving the existence,
nature or scope of the Debtors' discharge;
(q) hear and determine such other matters as may be provided in
or that may arise in connection with the Plan, Confirmation Order, the Claims
Trading Injunction, the Asbestos Personal Injury Permanent Channeling
Injunction, or as may be authorized under, or not inconsistent with,
provisions of the Bankruptcy Code;
(r) enter a final decree closing the Chapter 11 Cases; and
(s) to hear and determine all objections to the termination of
the Asbestos Personal Injury Trust and/or the FB Asbestos Property Damage
Trust.
13.2 Continued Reference to the Bankruptcy Court
Notwithstanding entry of the Confirmation Order and/or the occurrence
of the Effective Date, the reference to the Bankruptcy Court pursuant to the
Reference Order shall continue, but subject to any modifications or
withdrawals of the reference specified in the Confirmation Order, Reference
Order, Case Management Order or other Order of the District Court; provided,
however, that nothing in this Plan, the Reference Order or other Order shall
affect the procedures established pursuant to the Asbestos Personal Injury
Trust Agreement, the Asbestos Personal Injury Trust Distribution Procedures,
the FB Asbestos Property Damage Trust Agreement and the FB Asbestos Property
Damage Trust Distribution Procedures.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Professional Fee Claims
All final requests for compensation or reimbursement of the fees of
any professional employed in the Chapter 11 Cases pursuant to Section 327 or
1103 of the Bankruptcy Code or otherwise, including the professionals seeking
compensation or reimbursement of costs and expenses relating to services
performed after the Petition Date and prior to and including the Effective
Date in connection with the Chapter 11 Cases, pursuant to Sections 327, 328,
330, 331, 503(b) or 1103 of the Bankruptcy Code for services rendered to the
Debtors, the Unsecured Creditors' Committee, the Asbestos Claimants'
Committee, the Future Claimants' Representative, the advisors to the Bank
Holders' sub-committee and the advisors to the Bondholders' and trade
creditors' sub-committee prior to the Effective Date and Claims for making a
substantial contribution under Section 503(b)(4) of the Bankruptcy Code must
be filed and served on the Reorganized Debtors and their counsel not later
than sixty (60) days after the Effective Date, unless otherwise ordered by the
Bankruptcy Court. Objections to applications of such professionals or other
entities for compensation or reimbursement of expenses must be filed and
served on the Reorganized Debtors and their counsel and the requesting
professional or other entity not later than sixty (60) days (or such longer
period as may be allowed by order of the Bankruptcy Court) after the date on
which the applicable application for compensation or reimbursement was served.
14.2 Administrative Claims Bar Date
All requests for payment of an Administrative Claim (other than as
set forth in Sections 3.1 and 14.1 of the Plan) must be filed with the
Bankruptcy Court and served on counsel for the Debtors not later than
forty-five (45) days after the Effective Date. Unless the Debtors object to an
Administrative Claim within forty-five (45) days after receipt, such
Administrative Claim shall be deemed Allowed in the amount requested. In the
event that the Debtors 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 an Administrative Claim which is paid or
payable by a Debtor in the ordinary course of business.
14.3 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. After the Effective Date, the
Reorganized Debtors shall pay all required fees pursuant to Section 1930 of
title 28 of the United States Code or any other statutory requirement and
comply with all statutory reporting requirements.
14.4 Modifications and Amendments
The Plan Proponents may alter, amend or modify the Plan or any
exhibits or schedules thereto under Section 1127(a) of the Bankruptcy Code at
any time prior to the Confirmation Date. After the Confirmation Date and prior
to substantial consummation of the Plan, as defined in Section 1101(2) of the
Bankruptcy Code, the Plan Proponents may, under Section 1127(b) of the
Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any
defect or omission or reconcile any inconsistencies in the Plan, the
Disclosure Statement, or the Confirmation Order, and such matters as may be
necessary to carry out the purposes and effects of the Plan so long as such
proceedings do not materially adversely affect the treatment of holders of
Claims under the Plan; provided, however, that prior notice of such
proceedings shall be served in accordance with the Bankruptcy Rules or order
of the Bankruptcy Court.
14.5 Severability of Plan Provisions
If, prior to the Confirmation Date, any term or provision herein is
held by the Bankruptcy Court to be invalid, void or unenforceable, the
Bankruptcy Court, at the request of the Plan Proponents, shall have the power
to alter and interpret such term or provision to make it valid or enforceable
to the maximum extent practicable, consistent with the original purpose of the
term or provision held to be invalid, void or unenforceable, and such term or
provision shall then be applicable as altered or interpreted. Notwithstanding
any such holding, alteration or interpretation, the remainder of the terms and
provisions herein 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 herein, as it may
have been altered or interpreted in accordance with the foregoing, is valid
and enforceable pursuant to its terms.
14.6 Successors and Assigns
The rights, benefits and obligations of any Person named or referred
to in the Plan shall be binding on, and shall inure to the benefit of, any
heir, executor, administrator, successor or assign of such Person.
14.7 Compromises and Settlements
Pursuant to Federal Rule of Bankruptcy Procedure 9019(a), the Debtors
may compromise and settle various Claims (other than Asbestos Personal Injury
Claims and FB Asbestos Property Damage Claims) against them and/or claims that
they may have against other Persons. The Debtors shall have the right (with
Bankruptcy Court approval, following appropriate notice and opportunity for a
hearing) to compromise and settle Claims against them and claims that they may
have against other Persons up to and including the Effective Date. After the
Effective Date, such right shall pass to the Reorganized Debtors pursuant to
the provisions of Article V of the Plan.
14.8 Corrective Action
The Debtors are authorized to take such actions as necessary and
appropriate to carry out the Plan, including the correction of mistakes or
other inadvertent action. In making distributions or transfers under the Plan,
the Debtors may seek return of transfers to the extent of any errors,
notwithstanding that the transfer is otherwise irrevocable under the Plan.
14.9 Discharge of the Debtors
(a) Except as otherwise provided herein or in the Confirmation
Order, all consideration distributed under the Plan and the treatment of the
Claims thereunder will be in exchange for, and in complete satisfaction,
settlement, discharge, and release of, all Claims or other obligations, suits,
judgments, damages, debts, rights, causes of action or liabilities (other than
Demands), or Interests or other rights of an equity security holder, relating
to the Debtors or the Reorganized Debtors or their respective Estates, and
regardless of whether any property will have been distributed or retained
pursuant to the Plan on account of such Claims or other obligations, suits,
judgments, damages, debts, rights, causes of action or liabilities (other than
Demands), or Interests or other rights of an equity security holder, and upon
the Effective Date, the Debtors and the Reorganized Debtors shall (i) be
deemed discharged under Section 1141(d)(1)(A) of the Bankruptcy Code and
released from any and all Claims or other obligations, suits, judgments,
damages, debts, rights, causes of action or liabilities or Interests or other
rights of an equity security holder of any nature whatsoever, including,
without limitation, liabilities that arose before the Confirmation Date, and
all debts of the kind specified in Sections 502(g), 502(h) or 502(i) 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 voted to accept the Plan and
(ii) terminate all rights and interests of holders of OCD Interests.
(b) As of the Confirmation Date, except as otherwise provided
herein or in the Confirmation Order, all Persons shall be precluded from
asserting against the Debtors or the Reorganized Debtors or their respective
Related Persons any other or further Claims or other obligations, suits,
judgments, damages, debts, Demands, rights, causes of action or liabilities or
Interests or other rights of an equity security holder relating to the Debtors
or the Reorganized Debtors or their respective Estates based upon any act,
omission, transaction or other activity of any nature that occurred prior to
the Confirmation Date. In accordance with the foregoing, except as otherwise
provided herein or in the Confirmation Order, the Confirmation Order shall be
a judicial determination of discharge of all such Claims or other obligations,
suits, judgments, damages, debts, rights, causes of action or liabilities
(other than Demands) or Interests or other rights of an equity security holder
against the Debtors or the Reorganized Debtors or their respective Estates and
termination of all OCD Interests, pursuant to Sections 524 and 1141 of the
Bankruptcy Code, and such discharge shall void any judgment obtained against
the Debtors or the Reorganized Debtors or their respective Estates at any
time, to the extent that such judgment relates to a discharged Claim or
terminated OCD Interest.
14.10 Special Provisions for Warranty Claims, Distributorship
Indemnification Claims and Product Coupon Claims
(a) The Debtors shall have the right after the Confirmation Date
to fulfill any pre-Petition Date and pre-Confirmation Date warranty claims
based on the Debtors' business judgment notwithstanding discharge of the
Claims and release of the Debtors pursuant to the Bankruptcy Code and the
Plan.
(b) The Debtors shall have the right after the Confirmation Date
to fulfill any pre-Petition Date product coupons issued in settlement of
asbestos property damage actions based on the Debtors' business judgment
notwithstanding discharge of the Claims and release of the Debtors pursuant to
the Bankruptcy Code and the Plan.
(c) The Debtors shall have the right after the Confirmation Date
to fulfill any pre-Petition Date and pre-Confirmation Date distributorship
indemnification claims that are not Asbestos Personal Injury Claims or FB
Asbestos Property Damage Claims based on the Debtors' business judgement
notwithstanding discharge of the Claims and release of the Debtors pursuant to
the Bankruptcy Code and the Plan.
14.11 Committees and Future Claimants' Representative
(a) Committees
On the Effective Date, each of the Unsecured Creditors'
Committee and the Asbestos Claimants' Committee will dissolve and its
respective members will be released and discharged from all duties and
obligations arising from or related to the Chapter 11 Cases, except for the
purpose of completing any matters, including, without limitation, litigation
or negotiations, pending as of the Effective Date. The professionals retained
by each of the Unsecured Creditors' Committee and the Asbestos Claimants'
Committee and the respective members thereof will not be entitled to
compensation or reimbursement of expenses for any services rendered after the
Effective Date, except (i) as authorized in the preceding sentence or (ii) to
the extent such services are rendered in connection with the hearing on final
allowances of compensation pursuant to Section 330 of the Bankruptcy Code.
(b) Future Claimants' Representative
On the Effective Date, the existence of the Future Claimants'
Representative and his rights to ongoing reimbursement of expenses and the
rights of his professionals to ongoing compensation and reimbursement of
expenses shall continue after the Effective Date only for (i) the purposes set
forth in the Asbestos Personal Injury Trust Agreement and the annexes thereto
and (ii) the purposes of completing any matters, including, without
limitation, litigation or negotiations, pending as of the Effective Date, and
shall otherwise terminate on the Effective Date.
14.12 Binding Effect
The Plan will be binding upon and inure to the benefit of each of the
Debtors and Reorganized Debtors and their respective Estates and each of their
respective Related Persons and any Person claiming by or through them, and any
Person that has held, currently holds or may hold a Claim or other obligation,
suit, judgment, damages, Demand, debt, right, cause of action or liability or
Interest or any right of an equity security holder, against or in the Debtors
whether or not such Person will receive or retain any property or interest in
property under the Plan and each of their respective successors and assigns;
in each case, including, without limitation, all parties-in-interest in the
Chapter 11 Cases.
14.13 Revocation, Withdrawal, or Non-Consummation
The Plan Proponents reserve the right to revoke or withdraw the Plan
at any time prior to the Confirmation Date and to file subsequent plans of
reorganization. If the Plan Proponents revoke or withdraw the Plan, or if
confirmation or consummation of the Plan does not occur, then (i) the Plan
shall be null and void in all respects, (ii) 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 (iii) nothing
contained in the Plan and no acts taken in preparation for consummation of the
Plan, shall (a) 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,
(b) prejudice in any manner the rights of the Plan Proponents, any Debtor or
any Person in any further proceedings involving a Debtor, or (c) constitute an
admission of any sort by the Plan Proponents, any Debtor or any other Person.
14.14 Plan Exhibits
Any and all exhibits to the Plan or other lists or schedules not
filed with the Plan shall be filed with the Clerk of the Bankruptcy Court at
least five (5) Business Days prior to the Objection Deadline, unless the Plan
provides otherwise. Upon such filing, such documents may be inspected in the
office of the Clerk of the Bankruptcy Court during normal court hours. Holders
of Claims or Interests may obtain a copy of any such document upon written
request to the Debtors in accordance with Section 14.15 of the Plan. The Plan
Proponents explicitly reserve the right to modify or make additions to or
subtractions from any schedule to the Plan and to modify any exhibit to the
Plan prior to the Objection Deadline.
14.15 Notices
Any notice, request or demand required or permitted to be made or
provided to or upon a Debtor or Reorganized Debtor or the Plan Proponents
under the Plan shall be (i) in writing, (ii) served by (a) certified mail,
return receipt requested, (b) hand delivery, (c) overnight delivery service,
(d) first-class mail or (e) facsimile transmission, and (iii) 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:
OWENS CORNING
One Owens Corning Parkway
Toledo, OH 43659
Att'n: Corporate Secretary
Telephone: (419) 248-7201
Facsimile: (419) 248-8445
with a copy to:
Law Department
OWENS CORNING
One Owens Corning Parkway
Toledo, OH 43659
Telephone: (419) 248-8650
Facsimile: (419) 325-4650
SAUL EWING LLP
222 Delaware Avenue
P.O. Box 1266
Wilmington, DE 19899-1266
Att'n: Norman L. Pernick, Esq.
Telephone: (301) 421-6800
Facsimile: (301) 421-6813
100 South Charles Street
Baltimore, MD 21201-2773
Att'n: Charles O. Monk II, Esq.
Telephone: (410) 332-8600
Facsimile: (410) 332-8862
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square
New York, NY 10036-6522
Att'n: Ralph Arditi, Esq.
D.J. Baker, Esq.
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
Asbestos Claimants' Committee:
CAPLIN & DRYSDALE, CHARTERED
399 Park Avenue
New York, NY 10022-4614
Att'n: Elihu Inselbuch, Esq.
Telephone: (212) 319-7125
Facsimile: (212) 644-6755
Peter Van N. Lockwood
Julie W. Davis
One Thomas Circle, N.W.
Washington, D.C. 20005
Telephone: (202) 862-5000
Facsimile: (202) 420 -3301
CAMPBELL & LEVINE, LLC
Chase Manhattan Centre
1201 N. Market Street
15th Floor
Wilmington, DE 19801
Att'n: Marla Eskin, Esq.
Telephone: (302) 426-1900
Facsimile: (302) 426-9947
Future Claimants' Representative:
James J. McMonagle
Vorys Sater Seymour & Pease LLP
2100 One Cleveland Center
1375 E. Ninth Street
Cleveland, OH 44114
Telephone: (216) 479-6158 (office)
Facsimile: (216) 937-3734 (office)
with a copy to:
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022
Att'n: Michael J. Crames Esq.
Telephone: (212) 836-8000
Facsimile: (212) 836-7151
YOUNG CONAWAY STARGATT & TAYLOR, LLP
P.O. Box 391
The Brandywine Building
1000 West Street, 17th Floor
Wilmington, DE 19801
Att'n: James L. Patton, Jr., Esq.
Telephone: (302) 571-6684
Facsimile: (302) 571-1253
14.16 Term of Injunctions or Stays
Unless otherwise provided herein or in the Confirmation Order, all
injunctions or stays provided for in the Chapter 11 Cases 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. All injunctions or stays contained in the Plan or the Confirmation Order
shall remain in full force and effect in accordance with their terms.
Dated: March 28, 2003
SAUL EWING LLP OWENS CORNING, et al.
(for itself and on behalf of the
Subsidiary Debtors)
By: /s/Norman L. Pernick By: /s/Stephen K. Krull
____________________________ ____________________________
Norman L. Pernick (I.D. # 2290) Name: Stephen K. Krull
222 Delaware Avenue Title: Senior Vice President
P.O. Box 1266 General Counsel and Secretary
Wilmington, DE 19899-1266
(302) 421-6800 SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
Charles O. Monk, II Ralph Arditi
Irving E. Walker D.J. Baker
Jay A. Shulman Four Times Square
100 South Charles Street New York, NY 10036-6522
Baltimore, MD 21201-2773 (212) 735-3000
(410) 332-8600
Special Counsel to Debtors
Attorneys for the Debtors and and Debtors-in-Possession
Debtors-in-Possession
KAYE SCHOLER LLP
Michael J. Crames CAPLIN & DRYSDALE, CHARTERED
Andrew A. Kress Elihu Inselbuch
Edmund M. Emrich 399 Park Avenue
425 Park Avenue New York, NY 10022
New York, NY 10022 (212) 319-7125
(212) 836-8000
Peter Van N. Lockwood
YOUNG, CONAWAY, Julie W. Davis
STARGATT & TAYLOR LLP One Thomas Circle, N.W.
Washington, D.C. 20005
By: /s/Edwin J. Harron (202) 862-5000
____________________________
Edwin J. Harron (I.D. # 3396) CAMPBELL & LEVINE
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391 By: /s/Mark T. Hurford
Wilmington, DE 19899-0391 ____________________________
(302) 571-6600 Mark T. Hurford (I.D. # 3299)
Chase Manhattan Center
Attorneys for James J. McMonagle, 15th Floor
Legal Representative for Future Claimants 1201 Market Street
Wilmington, DE 19899
(302) 426-1900
Attorneys for the Official
Committee of Asbestos Claimants
Schedule I
Schedule of Subsidiary Debtors
CDC Corporation
Engineered Yarns America, Inc.
Exterior Systems, Inc.
Falcon Foam Corporation
Fibreboard Corporation
HOMExperts LLC
Integrex
Integrex Professional Services LLC
Integrex Testing Systems LLC
Integrex Supply Chain Solutions LLC
Integrex Ventures LLC
Jefferson Holdings, Inc.
Owens-Corning Fiberglas Technology Inc.
Owens Corning HT, Inc.
Owens-Corning Overseas Holdings, Inc.
Owens Corning Remodeling Systems, LLC
Soltech, Inc.
Schedule II
List of Non-Debtor Subsidiaries
Commercial Owens Corning Chile Limitada
Crown Manufacturing Inc.
Engineered Pipe Systems, Inc.
EPS Holding AS
Eric Company
European Owens-Corning Fiberglas, S.A.
Flowtite Offshore Services Ltd.
Goodman Ventures, Inc.
IPM, Inc.
LMP Impianti Srl
Norske EPS Botswana AS
OC (Belgium) Holdings, Inc.
OC Celfortec Inc.
O.C. Funding B.V.
OCW Acquisition Corporation
Owens-Corning Britinvest Limited
Owens-Corning Capital Holdings I, Inc.
Owens-Corning Capital Holdings II, Inc.
Owens-Corning Capital L.L.C.
Owens-Corning Cayman Limited
Owens-Corning Fiberglas Deutschland GmbH
Owens-Corning Fiberglas (G.B.) Ltd.
Owens-Corning Fiberglas Espana, S.A.
Owens-Corning Fiberglas France S.A.
Owens-Corning Fiberglas Norway A/S
Owens-Corning Fiberglas S.A.
Owens-Corning Fiberglas Sweden Inc.
Owens-Corning Fiberglas (U.K.) Pension Plan Ltd.
Owens-Corning FSC, Inc.
Owens-Corning Funding Corporation
Owens-Corning (Guangzhou) Fiberglas Co., Ltd.
Owens-Corning Holdings Limited
Owens-Corning Real Estate Corporation
Owens-Corning (Sweden) AB
Owens-Corning Veil Netherlands B.V.
Owens-Corning Veil U.K. Ltd.
Owens Corning (Anshan) Fiberglass Co., Ltd.
Owens Corning Argentina Sociedad de Responsabilidad Limitada
Owens Corning Australia Pty. Limited
Owens Corning Building Materials Espana, S.A.
Owens Corning Canada Inc.
Owens Corning Cayman (China) Holdings
Owens Corning (China) Investment Company, Ltd.
Owens Corning Commercial Insulation Systems, LLC
Owens Corning Composites Italia S.r.l.
Owens Corning Composites SPRL
Owens Corning Espana SA
Owens Corning Fiberglas A.S. Limitada
Owens Corning (India) Limited
Owens Corning (Japan) Ltd.
Owens Corning Integrated Acoustic Systems, LLC
Owens Corning Korea
Owens Corning Mexico, S.A. de C.V.
Owens Corning (Nanjing) Foamular Board Co. Ltd.
Owens Corning NRO Inc.
Owens Corning NRO II Inc.
Owens Corning (Shanghai) Fiberglas Co., Ltd.
Owens Corning (Singapore) Pte Ltd.
Owens Corning VF Holdings, Inc.
Palmetto Products, Inc.
Quest Industries, LLC
Scanglas Ltd.
Trumbull Asphalt Co. of Delaware
Vytec Corporation
Wall Technology, Inc.
Willcorp,Inc.
Wrexham A.R. Glass Ltd.
Schedule V
Schedule of Avoidance Actions Commenced by the Debtors
Owens Corning, et al. v. A.C. Leadbetter & Son, Inc. (Case No. A-02-5810).
Owens Corning, et al. v. AT Plastics Corporation (Case No. A-02-5811).
Owens Corning, et al. v. Nextiraone, LLC, f/k/a Williams Communications
Solutions, LLC and Williams Communications, LLC f/k/a Williams Communications
Solutions, LLC (Case No. A-02-5817).
Owens Corning and Fibreboard Corporation v. John D. Roach, et al. (Case No.
A-02-5826).
Owens Corning v. Bank of America Corp. (Case No. A-02-5819).
Owens Corning v. Sanford C. Bernstein & Co. LLC, et al. (Case No. A-02-5820).
Owens Corning v. The Northern Trust Company (Case No. A-02-5818).
Owens Corning, et al. v. Credit Suisse First Boston, et al. (Case No.
A-02-5829).
Owens Corning, Fibreboard Corporation and Integrex v. The Estate of David T.
Cobb and Official Committee of Unsecured Creditors (Case No. A-02-5832).
Owens Corning, Fibreboard Corporation and Integrex v. Duke Law Firm, P.C. and
Official Committee of Unsecured Creditors (Case No. A-02-5875).
Owens Corning, Fibreboard Corporation and Integrex v. Ness Motley Loadholt
Richardson & Poole, Ness Motley LLC and Official Committee of Unsecured
Creditors (Case No. A-02-5830).
Owens Corning, Fibreboard Corporation and Integrex v. Lewis & Lewis, P.A.,
Michael T. Lewis and Official Committee of Unsecured Creditors (Case No.
A-02-5876).
Owens Corning, Fibreboard Corporation and Integrex v. Terrence M. Johnson,
Esquire and Official Committee of Unsecured Creditors (Case No. A-02-5872).
Owens Corning, Fibreboard Corporation and Integrex v. Law Office of Peter T.
Nicholl and Official Committee of Unsecured Creditors (Case No. A-02-5879).
Owens Corning, Fibreboard Corporation and Integrex v. Peyton Parenti &
Whittington, Peyton Law Firm and Official Committee of
Unsecured Creditors (Case No. A-02-5831).
Owens Corning, Fibreboard Corporation and Integrex v. Provost Umphrey Law Firm
LLP and Official Committee of Unsecured Creditors (Case No. A-02-5873).
Owens Corning, Fibreboard Corporation and Integrex v. Reaud, Morgan & Quinn,
Inc., The Reaud Law Firm and Official Committee of Unsecured Creditors (Case
No. A-02-5874).
Owens Corning, Fibreboard Corporation and Integrex v. Roxie Huffman Viator and
Official Committee of Unsecured Creditors (Case No. A-02-5871).
Owens Corning, Fibreboard Corporation and Integrex v. Vonachen, Lawless,
Trager & Slevin and Official Committee of Unsecured Creditors (Case No.
A-02-5878).
Schedule XII
Combined Distribution Package
The Combined Distribution Package consists of:
1. Available Cash, less $7 million in Cash as the Cash component of the FB
Sub-Account Settlement Payment;
2. Senior Notes in the aggregate principal amount of $1,400 million, less
the sum of (a) the amount of any deferred portion of the Allowed Priority
Tax Claims and (b) Senior Notes in the aggregate principal amount of $63
million as the Senior Notes component of the FB Sub-Account Settlement
Payment;
3. 76 million shares of New OCD Common Stock, with an estimated value of
$1,900 million, less 2.8 million shares, with an estimated value of $70
million, as the New OCD Common Stock component of the FB Sub-Account
Settlement Payment; and
4. The Litigation Trust Recoveries.
Schedule XIII
Combined Net Distribution Package
The Combined Net Distribution Package consists of:
1. Available Cash, less the sum of (a) $20 million in Cash as the Cash
component of Guarantee Settlement Payment and (b) $7 million in Cash as
the Cash component of the FB Sub-Account Settlement Payment;
2. Senior Notes in the aggregate principal amount of $1,400 million, less
the sum of (a) the amount of any deferred portion of the Allowed Priority
Tax Claims, (b) Senior Notes in the aggregate principal amount of $180
million as the Senior Notes component of the Guarantee Settlement Payment
and (c) Senior Notes in the aggregate principal amount of $63 million as
the Senior Notes component of the FB Sub-Account Settlement Payment;
3. 76 million shares of New OCD Common Stock, with an estimated value of
$1,900 million, less the sum of (a) 8 million shares of New OCD Common
Stock, with an estimated value of $200 million, as the New OCD Common
Stock component of the Guarantee Settlement Payment and (b) 2.8 million
shares of New OCD Common Stock, with an estimated value of $70 million,
as the New OCD Common Stock component of the FB Sub-Account Settlement
Payment; and
4. The Litigation Trust Recoveries.
SCHEDULE XVI
Insurer Policy Period Policy Number
- ------- ------------- -------------
Lloyd's of London Sept. 15, 1950 to Sept. 15, 1953 564/155055
Lloyd's of London Sept. 15, 1953 to Sept. 15, 1956 564/477688
Lloyd's of London Sept. 15, 1953 to Sept. 15, 1954 53/8540D
Lloyd's of London Sept. 15, 1954 to Sept. 15, 1955 54/83850
Lloyd's of London Sept. 15, 1955 to Sept. 15, 1956 55/7871D
Employers Reinsurance Corp. Sept. 15, 1956 to Sept. 15, 1959 C-2033
Lloyd's of London Sept. 15, 1956 to Sept. 15, 1959 564/500671
Lloyd's of London Sept. 15, 1956 to Sept. 15, 1958 56/8706D
Lloyd's of London Sept. 15, 1958 to Sept. 15, 1959 58/10666D
Employers Surplus Lines Ins. Co. Sept. 15, 1959 to Sept. 15, 1962 E50072
Lloyd's of London Sept. 15, 1959 to Sept. 15, 1962 564/510503
Lloyd's of London Sept. 15, 1959 to Sept. 15, 1962 59/9335D
Truck Ins. Exchange April 1, 1977 to Oct. 1, 1978 350 41 55
Ins. Co. Of The State Of Pa June 1, 1977 to July 1, 1977 4177 8005
Central National Insurance Co. July 1, 1977 to June 1, 1978 CNU 12 65 73
Mission Insurance July 1, 1977 to June 1, 1978 M 835766
Pine Top June 1, 1978 to Aug. 1, 1978 MLP 101015
Lexington June 1, 1978 to Aug. 3, 1978 5513494
Puritan Insurance Co. April 1, 1979 to April 1, 1980 ML 650521
Granite State Jan. 1, 1980 to April 1, 1980 6579 5818
Granite State Jan. 1, 1980 to April 1, 1980 6579 0962
Granite State April 1, 1980 to April 1, 1981 6580 7157
Granite State April 1, 1980 to April 1, 1981 6580 2060
New England Reinsurance Corp. April 1, 1980 to April 1, 1981 791297
California Union Ins. Company April 1, 1980 to April 1, 1981 ZCX 004028
Allianz Underwriters Inc. April 1, 1980 to April 1, 1981 AUX 5200051
Granite State April 1, 1981 to April 1, 1982 6581 8194
Granite State April 1, 1981 to April 1, 1982 6581 2956
New England Reinsurance Corp. April 1, 1981 to April 1, 1982 791604
California Union Ins. Company April 1, 1981 to April 1, 1982 ZCX 004437
Allianz Underwriters Inc. April 1, 1981 to April 1, 1982 AUX 5201138
Granite State April 1, 1982 to April 1, 1983 6582 9385
New England Reinsurance Corp. April 1, 1982 to April 1, 1984 791794
California Union Ins. Company April 1, 1982 to April 1, 1983 ZCX 006186
Allianz Underwriters Inc. April 1, 1982 to April 1, 1983 AUX 5201505
Century Indemnity Co. April 1, 1982 to April 1, 1984 CIZ 425553
Central National Insurance Co. April 1, 1982 to April 1, 1985 CNZ 006802
Granite State April 1, 1983 to April 1, 1984 6583 0372
California Union Ins. Company April 1, 1983 to April 1, 1984 ZCX 006526
Allianz Underwriters Inc. April 1, 1983 to April 1, 1984 AUX 5201071
Granite State April 1, 1984 to April 1, 1985 6584 1255
Aetna Insurance Co. April 1, 1984 to April 1, 1985 EX 09 1011
Constitution State April 1, 1984 to April 1, 1985 CE 874 F6883
SCHEDULE XVII
Insurer Policy Period Policy Number
- --------- ------------- -------------
Midland June 18, 1974 to Oct. 22, 1976 XL 1110170544
National Union Fire June 18, 1974 to Oct. 22, 1976 CE 1011835
Affiliated FM July 9, 1974 to Oct. 22, 1976 XL 72515
INA July 9, 1974 to Oct. 22, 1976 XCP 6638
Lexington Oct. 22, 1975 to Oct. 22, 1976 GC 5502955
Midland Oct. 22, 1976 to Oct. 22, 1977 XL 151996
National Union Fire Oct. 22, 1976 to Oct. 22, 1977 1189233
Allianz March 9, 1979 to Sept. 1, 1979 UMB 599515
Midland Sept. 1, 1979 to Sept. 1, 1980 XL 153013
XL 153014
Transit Casualty Sept. 1, 1979 to Sept. 1, 1980 SCU 955271
SCU 955258
Gibraltar Sept. 1, 1979 to Sept. 1, 1980 GMX 00232
GMX 00236
Granite State Sept. 1, 1979 to Sept. 1, 1980 6179-1549
6179-1662
Integrity Sept. 1, 1979 to Sept. 1, 1980 XL 201337
National Union Fire Sept. 1, 1979 to Sept. 1, 1980 1224753
1224754
Allianz Sept. 1, 1979 to Sept. 1, 1980 AU 5003102
Birmingham Fire Sept. 1, 1979 to Sept. 1, 1980 SE 6073551
Landmark Sept. 1, 1979 to Sept. 1, 1980 FE 4000221
Royale Belge Sept. 1, 1979 to Sept. 1, 1980 1250965/79
Southern American Sept. 1, 1979 to Sept. 1, 1980 XX 800201
Zurich International Sept. 1, 1979 to Sept. 1, 1980 ZI 7162
Midland Sept. 1, 1980 to Sept. 1, 1981 XL 706744
XL 706745
Transit Casualty Sept. 1, 1980 to Sept. 1, 1981 MUX 967039
MUX 967040
Allianz Sept. 1, 1980 to Sept. 1, 1981 AUX 5200169
AUX 5200178
Gibraltar Sept. 1, 1980 to Sept. 1, 1981 GMX 00719
GMX 00720
Granite State Sept. 1, 1980 to Sept. 1, 1981 6180-2514
6180-2515
Integrity Sept. 1, 1980 to Sept. 1, 1981 XL 201765
National Union Fire Sept. 1, 1980 to Sept. 1, 1981 122 60 49
122 60 50
Birmingham Fire Sept. 1, 1980 to Sept. 1, 1981 SE 6073686
Royale Belge Sept. 1, 1980 to Sept. 1, 1981 1250965/80
Southern American Sept. 1, 1980 to Sept. 1, 1981 XX 800360
Zurich International Sept. 1, 1980 to Sept. 1, 1981 ZIB 7458/2
Midland Sept. 1, 1981 to Sept. 1, 1982 XL 724521
XL 724522
Transit Casualty Sept. 1, 1981 to Sept. 1, 1982 MUX 967065
MUL 967066
Allianz Sept. 1, 1981 to Sept. 1, 1982 AUX 5201229
AUX 5201230
Gibraltar Sept. 1, 1981 to Sept. 1, 1982 GMX 01308
GMX 01309
Integrity Sept. 1, 1981 to Sept. 1 1982 XL 203363
XL 203364
National Union Fire Sept. 1, 1981 to Sept. 1, 1982 118 64 21
118 64 22
Birmingham Fire Sept. 1, 1981 to Sept. 1, 1982 SE 6073042
Central Nat'l of Omaha Sept. 1, 1981 to Sept. 1, 1982 CNZ 0066019
Continental Sept. 1, 1981 to Dec. 17, 1981 SRX 3196793
Royale Belge Sept. 1, 1981 to Sept. 1, 1982 1250965-81
Southern American Sept. 1, 1981 to Sept. 1, 1982 XX 800472
Transit Casualty Sept. 1, 1982 to Sept. 1, 1983 UMB 950250
Midland Sept. 1, 1982 to Sept. 1, 1983 XL 739665
XL 739666
XL 739667
Birmingham Fire Sept. 1, 1982 to Sept. 1, 1983 SE 607 3986
SE 607 3985
Gibraltar Sept. 1, 1982 to Sept. 1, 1983 GMX 01828
GMX 01829
Integrity Sept. 1, 1982 to Sept. 1, 1983 XL 206444
XL 206445
National Union Fire Sept. 1, 1982 to Sept. 1, 1983 118 64 37
118 64 38
Central Nat'l of Omaha Sept. 1, 1982 to Sept. 1, 1983 CNZ 008086
Granite State Sept. 1, 1982 to Sept. 1, 1983 6682-3495
Harbor Insurance Co. Sept. 1, 1982 to Sept. 1, 1983 HI 163017
London Guarantee & Accd. Sept. 1, 1982 to Sept. 1, 1983 LX 18988076
Pacific Employers Sept. 1, 1982 to Sept. 1, 1983 XCC 003198
Royal Indemnity Dec. 10, 1982 to Sept. 1, 1983 ED 101856
Royale Belge Sept. 1, 1982 to Sept. 1, 1983 1250965/82
Central Nat'l of Omaha Sept. 1, 1983 to Sept. 1, 1984 CNZ 008414
Gibraltar Sept. 1, 1983 to Sept. 1, 1984 GMX 02346
GMX 02347
Midland Sept. 1, 1983 to Sept. 1, 1984 XL 749124
XL 749125
XL 749143
Royal Indemnity Sept. 1, 1983 to Sept. 1, 1984 ED 102134
Birmingham Fire Sept. 1, 1983 to Sept. 1, 1984 SE 6074148
SE 6074149
Granite State Sept. 1, 1983 to Sept. 1, 1984 6683-4149
6683-4150
INA Underwriters Sept. 1, 1983 to Sept. 1, 1984 XCP 145412
XCP 145413
Integrity Sept. 1, 1983 to Sept. 1, 1984 XL 207790
National Union Fire Sept. 1, 1983 to Sept. 1, 1984 9605001
9605002
Royal Indemnity Sept. 1, 1983 to Sept. 1, 1984 ED 102135
Harbor Insurance Co. Sept. 1, 1983 to Feb. 10, 1984 HI 176858
London Guarantee & Accd. Sept. 1, 1983 to Sept. 1, 1984 LX 2107865
Royale Belge Sept. 1, 1983 to Sept. 1, 1984 1250965/83
Schedule XVIII
Schedule of FB Sub-Account Settlement Payment
The FB Sub-Account Settlement Payment shall be $140 million consisting of the
following:
1. $7 million in Cash;
2. Senior Notes in the principal amount of $63 million; and
3. 2.8 million shares of New OCD Common Stock, with an estimated value of
$70 million.