EXHIBIT 2.2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
IN RE: : Jointly Administered
: Case No. 01-11282 (RJN)
BURLINGTON INDUSTRIES, INC., :
a Delaware corporation, et al., : Chapter 11
:
Debtors. :
:
: (Case No. 01-11282 (RJN))
(Burlington Industries, Inc.) : (Case No. 01-11283 (RJN))
(B.I. Transportation, Inc.) : (Case No. 01-11284 (RJN))
(BH/M-II Inc.) : (Case No. 01-11285 (RJN))
(BI Properties Inc.) : (Case No. 01-11286 (RJN))
(BI Properties I Inc.) : (Case No. 01-11287 (RJN))
(BH Mexico Holdings I, Inc.) : (Case No. 01-11288 (RJN))
(BH Mexico Holdings II, Inc.) : (Case No. 01-11289 (RJN))
(BH Mexico Laundry Holding Co.) : (Case No. 01-11290 (RJN))
(BH Mexico Yarns Holding Co.) : (Case No. 01-11291 (RJN))
(Burlington Apparel Services Company) : (Case No. 01-11292 (RJN))
(Burlington Fabrics Inc.) : (Case No. 01-11293 (RJN))
(Burlington Fabritex USA, Inc.) : (Case No. 01-11294 (RJN))
(Burlington Industries I, LLC) : (Case No. 01-11295 (RJN))
(Burlington Industries II, LLC) : (Case No. 01-11296 (RJN))
(Burlington Industries III, LLC) : (Case No. 01-11297 (RJN))
(Burlington Industries IV, LLC) : (Case No. 01-11298 (RJN))
(Burlington Industries V, LLC) : (Case No. 01-11299 (RJN))
(Burlington International Services Company) : (Case No. 01-11300 (RJN))
(Burlington Investment Inc.) : (Case No. 01-11301 (RJN))
(Burlington Investment II Inc.) : (Case No. 01-11302 (RJN))
(Burlington Mills Corporation) : (Case No. 01-11303 (RJN))
(Burlington Mills, Inc.) : (Case No. 01-11304 (RJN))
(Burlington Worldwide Inc.) : (Case No. 01-11305 (RJN))
(Burlington Worsteds Inc.) : (Case No. 01-11306 (RJN))
(Distributex Inc.)
JOINT PLAN OF REORGANIZATION OF
BURLINGTON INDUSTRIES, INC. AND ITS DEBTOR SUBSIDIARIES
Daniel J. DeFranceschi (DE Bar No. 2732) David G. Heiman (OH 0038271)
Rebecca L. Booth (DE Bar No. 4031) Michelle Morgan Harner (OH 0064833)
RICHARDS, LAYTON & FINGER, P.A. Gus Kallergis (OH 0071557)
One Rodney Square JONES DAY
P.O. Box 551 North Point
Wilmington, Delaware 19899 901 Lakeside Avenue
(302) 651-7700 Cleveland, Ohio 44114
(216) 586-3939
ATTORNEYS FOR DEBTORS AND ATTORNEYS FOR DEBTORS AND
DEBTORS IN POSSESSION DEBTORS IN POSSESSION
February 11, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION AND COMPUTATION OF TIME......................................... 1
A. Defined Terms.......................................................................................... 1
1. "2005 7.25% Senior Notes"..................................................................... 1
2. "2027 7.25% Senior Notes"..................................................................... 1
3. "Administrative Claim"........................................................................ 1
4. "Administrative Trade Claim".................................................................. 1
5. "Allowed Claim"............................................................................... 1
6. "Allowed . . . Claim"......................................................................... 2
7. "Assumed Contracts"........................................................................... 2
8. "Auction"..................................................................................... 2
9. "BII Distribution Trust"...................................................................... 2
10. "BII Distribution Trust Agreement"............................................................ 2
11. "Ballot"...................................................................................... 2
12. "Bankruptcy Code"............................................................................. 2
13. "Bankruptcy Court"............................................................................ 2
14. "Bankruptcy Rules"............................................................................ 2
15. "Bar Date".................................................................................... 2
16. "Bar Date Order".............................................................................. 2
17. "Berkshire Agreement"......................................................................... 2
18. "Berkshire Sale Proceeds"..................................................................... 2
19. "Bidding Procedures".......................................................................... 3
20. "Burlington".................................................................................. 3
21. "Burlington Companies"........................................................................ 3
22. "Burlington Fabrics".......................................................................... 3
23. "Burlington Fabrics Irrevocable Trust"........................................................ 3
24. "Burlington Fabrics Trust Agreement".......................................................... 3
25. "Burlington Fabrics Trustee".................................................................. 3
26. "Burlington Investment"....................................................................... 3
27. "Burlington Subsidiary Debtors"............................................................... 3
28. "Business Day"................................................................................ 3
29. "Buyer"....................................................................................... 3
30. "Cash Investment Yield"....................................................................... 3
31. "Cash Management Order"....................................................................... 3
32. "Chase Bank".................................................................................. 3
33. "Claim"....................................................................................... 3
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TABLE OF CONTENTS
(continued)
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34. "Claims Objection Bar Date"................................................................... 3
35. "Class"....................................................................................... 4
36. "Closing" and "Closing Date".................................................................. 4
37. "Confirmation"................................................................................ 4
38. "Confirmation Date"........................................................................... 4
39. "Confirmation Hearing"........................................................................ 4
40. "Confirmation Order".......................................................................... 4
41. "Creditors' Committee"........................................................................ 4
42. "Cure Amount Claim"........................................................................... 4
43. "Debtors"..................................................................................... 4
44. "DIP Credit Agreement"........................................................................ 4
45. "DIP Lender".................................................................................. 4
46. "Disbursing Agent"............................................................................ 4
47. "Disclosure Statement"........................................................................ 4
48. "Disputed Claim".............................................................................. 4
49. "Disputed Insured Claim" and "Disputed Uninsured Claim"....................................... 5
50. "Distribution Record Date".................................................................... 5
51. "Distribution Trust Assets"................................................................... 5
52. "Distribution Trust Expenses"................................................................. 5
53. "Distribution Trust Representative"........................................................... 5
54. "Distributions"............................................................................... 5
55. "Document Website"............................................................................ 5
56. "Effective Date".............................................................................. 5
57. "Emergence Bonus"............................................................................. 5
58. "ERISA"....................................................................................... 5
59. "Escrow Expenses"............................................................................. 5
60. "Estate"...................................................................................... 6
61. "Executory Contract and Unexpired Lease"...................................................... 6
62. "Excluded Assets"............................................................................. 6
63. "Face Amount"................................................................................. 6
64. "Fee Auditor"................................................................................. 6
65. "Fee Claim"................................................................................... 6
66. "Fee Order"................................................................................... 6
67. "File", "Filed" or "Filing"................................................................... 6
68. "Final Order"................................................................................. 6
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TABLE OF CONTENTS
(continued)
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69. "Indenture Trustee"........................................................................... 7
70. "Insured Claim"............................................................................... 7
71. "Intercompany Claim".......................................................................... 7
72. "Interest".................................................................................... 7
73. "IRS"......................................................................................... 7
74. "KERP"........................................................................................ 7
75. "KERP Participant"............................................................................ 7
76. "KERP Payments"............................................................................... 7
77. "Liabilities"................................................................................. 7
78. "New Common Stock"............................................................................ 7
79. "New Subsidiary Equity Interests"............................................................. 7
80. "Old Common Stock"............................................................................ 7
81. "Old Nonvoting Common Stock".................................................................. 7
82. "Old Senior Note Claim"....................................................................... 8
83. "Old Senior Notes"............................................................................ 8
84. "Old Subsidiary Equity Interests"............................................................. 8
85. "Ordinary Course Professionals Order"......................................................... 8
86. "PBGC"........................................................................................ 8
87. "Pension Plan"................................................................................ 8
88. "Petition Date"............................................................................... 8
89. "Plan"........................................................................................ 8
90. "Plan Supplement"............................................................................. 8
91. "Prepetition Bank Claims"..................................................................... 8
92. "Prepetition Credit Facility"................................................................. 8
93. "Prepetition Indenture"....................................................................... 8
94. "Prepetition Lenders"......................................................................... 8
95. "Priority Claim".............................................................................. 8
96. "Priority Tax Claim".......................................................................... 8
97. "Professional"................................................................................ 8
98. "Pro Rata".................................................................................... 9
99. "Purchase Price".............................................................................. 9
100. "Quarterly Distribution Date"................................................................. 9
101. "Real Property Executory Contract and Unexpired Lease"........................................ 9
102. "Recovery Actions"............................................................................ 9
103. "Reinstated" or "Reinstatement"............................................................... 9
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(continued)
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104. "Released Parties"............................................................................ 9
105. "Remaining Proceeds".......................................................................... 10
106. "Reorganization Case"......................................................................... 10
107. "Reorganized . . ."........................................................................... 10
108. "Restructuring Transactions".................................................................. 10
109. "Schedules"................................................................................... 10
110. "Secondary Liability Claim"................................................................... 10
111. "Secured Claim"............................................................................... 10
112. "Stipulation of Amount and Nature of Claim"................................................... 10
113. "Supplemental Executive Retirement Plans"..................................................... 10
114. "Tax"......................................................................................... 10
115. "Third Party Disbursing Agent"................................................................ 10
116. "Tort Claim".................................................................................. 10
117. "Trade Claim"................................................................................. 11
118. "Uninsured Claim"............................................................................. 11
119. "Unsecured Claim"............................................................................. 11
120. "Unsecured Claims Reserve".................................................................... 11
121. "Voting Deadline"............................................................................. 11
122. "Working Capital Amount Due".................................................................. 11
B. Rules of Interpretation and Computation of Time........................................................ 11
1. Rules of Interpretation....................................................................... 11
2. Computation of Time........................................................................... 11
ARTICLE II. CLASSES OF CLAIMS AND INTERESTS........................................................................ 11
A. Unimpaired Classes of Claims........................................................................... 12
1. Class 1 (Unsecured Priority Claims)........................................................... 12
2. Class 2 (Prepetition Bank Claims)............................................................. 12
3. Class 3 (Other Secured Claims)................................................................ 12
B. Impaired Classes of Claims and Interests............................................................... 12
1. Class 4 (General Unsecured Claims):........................................................... 12
2. Class 5 (Convenience Claims).................................................................. 12
3. Class 6 (Penalty Claims)...................................................................... 12
4. Class 7 (Intercompany Claims)................................................................. 12
5. Class 8 (Equity Interests).................................................................... 12
ARTICLE III. TREATMENT OF CLAIMS AND INTERESTS...................................................................... 12
A. Unclassified Claims.................................................................................... 12
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(continued)
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1. Payment of Administrative Claims.............................................................. 12
a. Administrative Claims in General..................................................... 12
b. Statutory Fees....................................................................... 13
c. Ordinary Course Liabilities.......................................................... 13
d. Claims Under the DIP Credit Agreement................................................ 13
e. Bar Dates for Administrative Claims.................................................. 13
i. General Bar Date Provisions.................................................. 13
ii. Bar Dates for Certain Administrative Claims.................................. 13
A. Professional Compensation........................................... 13
B. Ordinary Course Liabilities......................................... 14
C. Claims Under the DIP Credit Agreement............................... 14
2. Payment of Priority Tax Claims................................................................ 14
a. Priority Tax Claims.................................................................. 14
b. Other Provisions Concerning Treatment of Priority Tax Claims......................... 14
B. Unimpaired Classes of Claims........................................................................... 15
1. Class 1 Claims (Unsecured Priority Claims).................................................... 15
2. Class 2 Claims (Prepetition Bank Claims)...................................................... 15
3. Class 3 Claims (Other Secured Claims)......................................................... 15
C. Impaired Classes of Claims and Interests............................................................... 15
1. Class 4 Claims (General Unsecured Claims)..................................................... 15
2. Class 5 Claims (Convenience Claims)........................................................... 15
3. Class 6 Claims (Penalty Claims)............................................................... 15
4. Class 7 Claims (Intercompany Claims).......................................................... 15
5. Class 8 Claims (Equity Interests)............................................................. 15
D. Special Provisions Regarding the Treatment of Allowed Secondary Liability Claims....................... 15
E. Special Provisions Regarding Allowance and Payment of Emergence Bonus for KERP Participants............ 16
F. Disallowance of Claims of Parties Holding Property Recoverable Pursuant to a Recovery Action........... 16
ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN................................................................... 16
A. Continued Corporate Existence and Vesting of Assets.................................................... 16
B. Restructuring Transactions............................................................................. 16
1. Restructuring Transactions Generally.......................................................... 16
2. Obligations of Any Successor Corporation in a Restructuring Transaction....................... 17
3. Implementation of Berkshire Agreement......................................................... 17
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(continued)
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4. Issuance of New Common Stock.................................................................. 17
5. Issuance of New Subsidiary Equity Interests................................................... 17
6. BII Distribution Trust........................................................................ 18
a. BII Distribution Trust............................................................... 18
c. Fees and Expenses of the BII Distribution Trust...................................... 18
d. Reports to be Filed by the BII Distribution Trust.................................... 18
e. Expenses for Professionals of the BII Distribution Trust............................. 18
f. Indemnification...................................................................... 19
7. Transfer of Assets from the Burlington Fabrics Irrevocable Trust..............................
C. Corporate Governance, Directors and Officers, Employment-Related Agreements and Compensation Programs..
1. Certificates of Incorporation and By-Laws of Reorganized Debtors.............................. 20
2. Directors and Officers of Reorganized Debtors................................................. 20
3. New Employment, Retirement, Indemnification and Other Related Agreements and Incentive
Compensation Programs......................................................................... 20
4. Corporate Action.............................................................................. 21
D. Preservation of Recovery Actions; Settlement of Claims and Releases.................................... 21
1. Preservation of Recovery Actions.............................................................. 21
2. Comprehensive Settlement of Claims and Controversies.......................................... 21
3. Releases...................................................................................... 21
a. General Releases of Debtors and Reorganized Debtors.................................. 21
b. General Releases by Debtors and Reorganized Debtors ................................. 22
c. General Releases by Holders of Claims or Interests................................... 22
d. Injunction Related to Releases....................................................... 22
E. Continuation or Termination of Certain Employee and Workers' Compensation Benefits..................... 22
1. Employee Benefits............................................................................. 22
2. Workers' Compensation Benefits................................................................ 23
F. Cancellation and Surrender of Instruments, Securities and Other Documentation.......................... 23
G. Release of Liens....................................................................................... 23
H. Effectuating Documents; Further Transactions; Exemption from Certain Transfer Taxes.................... 23
ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.................................................. 24
A. Executory Contracts and Unexpired Leases to Be Assumed or Assumed and Assigned......................... 24
1. Assumption and Assignment Generally........................................................... 24
2. Assumptions and Assignments of Real Property Executory Contracts and Unexpired Leases......... 24
3. Assignments Related to the Restructuring Transactions......................................... 24
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(continued)
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4. Approval of Assumptions and Assignments....................................................... 24
B. Payments Related to the Assumption of Executory Contracts and Unexpired Leases......................... 25
C. Executory Contracts and Unexpired Leases to Be Rejected................................................ 25
D. Bar Date for Rejection Damages......................................................................... 25
E. Special Executory Contract and Unexpired Lease Issues.................................................. 26
1. Obligations to Indemnify Directors, Officers and Employees.................................... 26
2. Reinstatement of Allowed Secondary Liability Claims Arising from or Related to Executory
Contracts or Unexpired Leases Assumed by the Debtors.......................................... 26
F. Contracts and Leases Entered Into After the Petition Date.............................................. 26
ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS..................................................................... 26
A. Distributions for Claims Allowed as of the Effective Date.............................................. 26
B. Method of Distributions to Holders of Claims Assumed by Reorganized Debtors............................ 27
C. Method of Distributions to Holders of Other Claims..................................................... 27
D. Compensation and Reimbursement for Services Related to Distributions................................... 27
E. Provisions Governing the Unsecured Claims Reserve...................................................... 27
1. Funding of Unsecured Claims Reserve........................................................... 27
2. Property Held in Unsecured Claims Reserve..................................................... 27
a. Investment........................................................................... 27
b. Recourse............................................................................. 27
F. Establishment of Other Claims Reserves................................................................. 27
G. Delivery of Distributions and Undeliverable or Unclaimed Distributions................................. 28
1. Delivery of Distributions..................................................................... 28
a. Generally............................................................................ 28
b. Special Provisions for Distributions to Holders of Old Senior Note Claims............ 28
2. Undeliverable Distributions Held by Disbursing Agents......................................... 28
a. Holding and Investment of Undeliverable Distributions................................ 28
b. After Distributions Become Deliverable............................................... 28
c. Failure to Claim Undeliverable Distributions......................................... 28
H. Distribution Record Date............................................................................... 29
I. Means of Cash Payments................................................................................. 29
J. Timing and Calculation of Amounts to Be Distributed.................................................... 29
1. Allowed Claims................................................................................ 29
2. De Minimis Distributions...................................................................... 30
3. Compliance with Tax Requirements.............................................................. 30
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(continued)
PAGE
K. Surrender of Cancelled Instruments or Securities....................................................... 30
1. Tender of Old Senior Notes.................................................................... 30
2. Lost, Stolen, Mutilated or Destroyed Old Senior Notes......................................... 31
3. Failure to Surrender Old Senior Notes......................................................... 31
ARTICLE VII. PROCEDURES FOR RESOLVING DISPUTED CLAIMS............................................................... 31
A. Prosecution of Objections to Claims.................................................................... 31
1. Objections to Claims.......................................................................... 31
2. Authority to Prosecute Objections............................................................. 31
B. Treatment of Disputed Claims........................................................................... 31
C. Distributions on Account of Disputed Claims Once They Are Allowed...................................... 32
ARTICLE VIII. SUBSTANTIVE CONSOLIDATION OF THE DEBTORS............................................................... 32
A. Substantive Consolidation.............................................................................. 32
B. Order Granting Substantive Consolidation............................................................... 32
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN...................................... 32
A. Conditions to Confirmation............................................................................. 32
B. Conditions to the Effective Date....................................................................... 33
C. Waiver of Conditions to the Confirmation or Effective Date............................................. 33
D. Effect of Nonoccurrence of Conditions to the Effective Date............................................ 33
ARTICLE X. CRAMDOWN............................................................................................... 34
ARTICLE XI. DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS............................................ 34
A. Discharge of Claims and Termination of Interests....................................................... 34
B. Injunctions............................................................................................ 34
C. Termination of Subordination Rights and Settlement of Related Claims and Controversies................. 35
ARTICLE XII. RETENTION OF JURISDICTION.............................................................................. 35
ARTICLE XIII. MISCELLANEOUS PROVISIONS............................................................................... 37
A. Dissolution of the Creditors' Committee................................................................ 37
B. Limitation of Liability................................................................................ 37
C. Modification of the Plan and Exhibits.................................................................. 37
D. Term of Injunctions or Stays........................................................................... 37
E. Revocation of the Plan................................................................................. 38
F. Severability of Plan Provisions........................................................................ 38
G. Successors and Assigns................................................................................. 38
H. The Plan Supplement.................................................................................... 38
I. Relationship Among Plan, Disclosure Statement and Certain Other Documents.............................. 38
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(continued)
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J. Service of Certain Plan Exhibits, Disclosure Statement Exhibits and Plan Supplement.................... 38
K. Service of Documents................................................................................... 38
1. Debtors and Reorganized Debtors............................................................... 39
2. Creditors' Committee.......................................................................... 39
3. DIP Lenders................................................................................... 39
4. Prepetition Lenders........................................................................... 40
5. Buyer......................................................................................... 40
6. United States Trustee......................................................................... 40
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TABLE OF EXHIBITS/1/
Exhibit I.A.17 Berkshire Agreement
Exhibit III.F Schedule of Emergence Bonus Formula
Exhibit IV.C.3(a) Nonexclusive Schedule of Employee Plans and Agreements to
Remain in or Take Effect as of the Effective Date
Exhibit IV.C.3(b) Schedule of Employee Plans and Agreements to Be Terminated
and Rejected as of the Effective Date
Exhibit V.A.1 Schedule of Real Property Executory Contracts and
Unexpired Leases to Be Assumed and Assigned
Exhibit V.C Nonexclusive Schedule of Executory Contracts and Unexpired
Leases to Be Rejected
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1 Except as otherwise indicated, all Exhibits will be Filed and made
available for review on the Document Website no later than ten days before
the Voting Deadline. The Debtors reserve the right to modify, amend,
supplement, restate or withdraw any of the Exhibits after they are Filed.
The Debtors will File all modified, amended, supplemented or restated
Exhibits as promptly as possible and will make such Exhibits available for
review on the Document Website.
INTRODUCTION
Burlington Industries, Inc. ("Burlington") and the other
above-captioned debtors and debtors in possession (collectively, the "Debtors")
propose the following joint plan of reorganization (the "Plan") for the
resolution of the outstanding claims against and equity interests in the
Debtors. The Debtors are proponents of the Plan within the meaning of section
1129 of the Bankruptcy Code, 11 U.S.C. Section 1129. Reference is made to the
Debtors' disclosure statement, filed contemporaneously with the Plan (the
"Disclosure Statement"), for a discussion of the Debtors' history, businesses,
results of operations, historical financial information, projections and
properties, and for a summary and analysis of the Plan. There also are other
agreements and documents, which are or will be filed with the Bankruptcy Court,
that are referenced in the Plan or the Disclosure Statement and that will be
available for review.
ARTICLE I.
DEFINED TERMS, RULES OF INTERPRETATION
AND COMPUTATION OF TIME
A. DEFINED TERMS
As used in the Plan, capitalized terms have the meanings set forth
below. Any term that is not otherwise defined herein, but that is used in the
Bankruptcy Code or the Bankruptcy Rules, will have the meaning given to that
term in the Bankruptcy Code or the Bankruptcy Rules, as applicable.
1. "2005 7.25% SENIOR NOTES" means the 7.25% unsecured senior notes for
$150.0 million aggregate principal amount sold by Burlington in September 1995
and due September 15, 2005, with interest payable semiannually beginning March
15, 1996 and controlled by the Prepetition Indenture.
2. "2027 7.25% SENIOR NOTES" means the 7.25% unsecured senior notes for
$150.0 million aggregate principal amount sold by Burlington in August 1997 and
due August 1, 2027, with interest payable semiannually beginning February 1,
1998 and controlled by the Prepetition Indenture.
3. "ADMINISTRATIVE CLAIM" means a Claim for costs and expenses of
administration allowed under sections 503(b), 507(b) or 1114(e)(2) of the
Bankruptcy Code, including: (a) the actual and necessary costs and expenses
incurred after the Petition Date of preserving the respective Estates and
operating the businesses of the Debtors (such as wages, salaries, commissions
for services and payments for inventories, leased equipment and premises),
including Claims under the DIP Credit Agreement; (b) compensation for legal,
financial advisory, accounting and other services and reimbursement of expenses
awarded or allowed under sections 330(a) or 331 of the Bankruptcy Code,
including Fee Claims; (c) all fees and charges assessed against the Estates
under chapter 123 of title 28, United States Code, 28 U.S.C. Sections 1911-1930;
(d) Claims for reclamation allowed in accordance with section 546(c)(2) of the
Bankruptcy Code and section 2-702 of the Uniform Commercial Code; (e) all
Intercompany Claims accorded administrative expense priority pursuant to section
503(b)(1) of the Bankruptcy Code and the Cash Management Order; and (f) all
Emergence Bonuses paid to KERP Participants on the Effective Date.
4. "ADMINISTRATIVE TRADE CLAIM" means an Administrative Claim arising
from or with respect to the sale of goods or rendition of services on or after
the Petition Date in the ordinary course of the applicable Debtor's business,
including Administrative Claims of employees for ordinary course wages, expense
reimbursement and health and welfare benefits.
5. "ALLOWED CLAIM" means:
a. a Claim that (i) has been listed by a particular Debtor on its
Schedules as other than disputed, contingent or unliquidated and (ii) is
not otherwise a Disputed Claim;
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b. a Claim (i) for which a proof of Claim or request for payment of
Administrative Claim has been Filed by the applicable Bar Date or otherwise
been deemed timely Filed under applicable law and (ii) that is not
otherwise a Disputed Claim; or
c. a Claim that is allowed: (i) in any Stipulation of Amount and
Nature of Claim executed by the applicable Debtor, Reorganized Debtor or
the Distribution Trust Representative and Claim holder on or after the
Effective Date; (ii) in any contract, instrument or other agreement entered
into in connection with the Plan and, if prior to the Effective Date,
approved by the Bankruptcy Court; (iii) in a Final Order; or (iv) pursuant
to the terms of the Plan.
6. "ALLOWED . . . CLAIM" means an Allowed Claim in the particular Class
or category specified. Any reference herein to a particular Allowed Claim
includes both the secured and unsecured portions of such Claim.
7. "ASSUMED CONTRACTS" has the meaning given to it in the Berkshire
Agreement.
8. "AUCTION" means the auction contemplated by the Bidding Procedures and
the Berkshire Agreement for the sale of the New Common Stock.
9. "BII DISTRIBUTION TRUST" means the trust established pursuant to
Section IV.B.6 to hold the Distribution Trust Assets and make Distributions to
holders of certain Allowed Claims.
10. "BII DISTRIBUTION TRUST AGREEMENT" means the trust agreement, to be
dated prior to the Effective Date, between the Debtors, the Creditors' Committee
and the Distribution Trust Representative, governing the BII Distribution Trust,
which shall be in the form contained in the Plan Supplement and acceptable to
the Debtors, the Creditors' Committee and the Distribution Trust Representative.
11. "BALLOT" means the form or forms distributed to each holder of an
impaired Claim entitled to vote on the Plan on which the holder indicates
acceptance or rejection of the Plan or any election for treatment of such Claim
under the Plan.
12. "BANKRUPTCY CODE" means title 11 of the United States Code, 11 U.S.C.
Sections 101-1330, as now in effect or hereafter amended with retroactive
applicability to these chapter 11 cases.
13. "BANKRUPTCY COURT" means the United States District Court having
jurisdiction over the Reorganization Cases and, to the extent of any reference
made pursuant to 28 U.S.C. Section 157, the bankruptcy unit of such District
Court.
14. "BANKRUPTCY RULES" means, collectively, the Federal Rules of
Bankruptcy Procedure and the local rules of the Bankruptcy Court, as now in
effect or hereafter amended with retroactive applicability to these chapter 11
cases.
15. "BAR DATE" means the applicable bar date by which a proof of Claim
must be or must have been Filed, as established by an order of the Bankruptcy
Court, including the Bar Date Order and the Confirmation Order.
16. "BAR DATE ORDER" means an order of the Bankruptcy Court establishing
Bar Dates for Filing proofs of Claims in the Reorganization Cases, as the same
may be amended, modified or supplemented.
17. "BERKSHIRE AGREEMENT" means the Stock Purchase and Sale Agreement,
dated as of February 11, 2003, as the same may be amended, by and between
Burlington (as seller) and the Buyer (as purchaser), attached hereto as Exhibit
I.A.17. The Berkshire Agreement is incorporated into the Plan and made a part of
it as set forth in Section IV.B.3.
18. "BERKSHIRE SALE PROCEEDS" means the cash to be paid by the Buyer to
the BII Distribution Trust under the terms of the Berkshire Agreement.
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19. "BIDDING PROCEDURES" means the bidding procedures and requirements
governing the Auction approved by an order of the Bankruptcy Court entered on
[_________], 2003.
20. "BURLINGTON" means Burlington Industries, Inc., a Delaware
corporation, one of the Debtors and the direct or indirect parent corporation of
each of the Burlington Subsidiary Debtors.
21. "BURLINGTON COMPANIES" means, collectively, Burlington, the Burlington
Subsidiary Debtors and their affiliates.
22. "BURLINGTON FABRICS" means Burlington Fabrics, Inc., a Delaware
corporation and one of the Debtors.
23. "BURLINGTON FABRICS IRREVOCABLE TRUST" means the irrevocable trust
created for the benefit of Burlington Fabrics' creditors pursuant to the
Bankruptcy Court's Order (A) Authorizing an Intercompany Transaction Involving
the Sale of Substantially All of the Assets of Burlington Fabrics, Inc. and (B)
Granting Certain Related Relief, dated August 29, 2002.
24. "BURLINGTON FABRICS TRUST AGREEMENT" means the Trust Agreement, dated
as of September 25, 2002, between Burlington Fabrics and the Burlington Fabrics
Trustee, governing the Burlington Fabrics Irrevocable Trust.
25. "BURLINGTON FABRICS TRUSTEE" means U.S. Bank National Association (or
any successor trustee), in its capacity as the trustee of the Burlington Fabrics
Irrevocable Trust.
26. "BURLINGTON INVESTMENT" means Burlington Investment Inc., a Delaware
corporation and one of the Debtors.
27. "BURLINGTON SUBSIDIARY DEBTORS" means, individually or collectively, a
Debtor or Debtors other than Burlington.
28. "BUSINESS DAY" means any day, other than a Saturday, Sunday or "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
29. "BUYER" means Berkshire Hathaway Inc., a Delaware corporation, as
purchaser under the Berkshire Agreement.
30. "CASH INVESTMENT YIELD" means the net yield earned by the applicable
Disbursing Agent from the investment of cash held pending Distribution pursuant
to the Plan, which investment will be in a manner consistent with the BII
Distribution Trust's investment and deposit guidelines.
31. "CASH MANAGEMENT ORDER" means the Order: (A) Approving Cash Management
System, Certain Intercompany Transactions with Nondebtor Affiliates and Use of
Existing Bank Accounts and Business Forms; (B) Granting Interim and Final
Approval of Investment and Deposit Guidelines; and (C) According Administrative
Expense Status to All Postpetition Intercompany Claims, entered by the
Bankruptcy Court on or about November 15, 2001.
32. "CHASE BANK" means The Chase Manhattan Bank, as administrative agent
for the Prepetition Lenders.
33. "CLAIM" means a "claim," as defined in section 101(5) of the
Bankruptcy Code, against any Debtor.
34. "CLAIMS OBJECTION BAR DATE" means, for all Claims, other than those
Claims allowed in accordance with Section I.A.5.c, the latest of: (a) 120 days
after the Effective Date; (b) 60 days after the Filing of a
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proof of Claim for such Claim; and (c) such other period of limitation as may be
specifically fixed by the Plan, the Confirmation Order, the Bankruptcy Rules or
a Final Order for objecting to such Claim.
35. "CLASS" means a class of Claims or Interests, as described in Article
II.
36. "CLOSING" and "Closing Date" have the meanings ascribed to them in
Section 1.03(a) of the Berkshire Agreement.
37. "CONFIRMATION" means the entry of the Confirmation Order on the docket
of the Bankruptcy Court.
38. "CONFIRMATION DATE" means the date on which the Bankruptcy Court
enters the Confirmation Order on its docket, within the meaning of Bankruptcy
Rules 5003 and 9021.
39. "CONFIRMATION HEARING" means the hearing held by the Bankruptcy Court
on Confirmation of the Plan, as such hearing may be continued from time to time.
40. "CONFIRMATION ORDER" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
41. "CREDITORS' COMMITTEE" means the official committee of unsecured
creditors of the Debtors appointed by the United States Trustee in the
Reorganization Cases pursuant to section 1102 of the Bankruptcy Code.
42. "CURE AMOUNT CLAIM" means a Claim based upon a Debtor's defaults
pursuant to an Executory Contract or Unexpired Lease at the time such contract
or lease is assumed by that Debtor under section 365 of the Bankruptcy Code.
43. "DEBTORS" means, collectively, the debtors and debtors in possession
identified on the cover page to this Plan.
44. "DIP CREDIT AGREEMENT" means, collectively: (a) the Revolving Credit
and Guaranty Agreement, dated as of November 15, 2001, as it may be subsequently
amended and modified, among the Debtors (as borrowers or guarantors), those
entities identified therein as "Lenders" and their respective successors and
assigns and JPMorgan Chase Bank (as agent bank); (b) all amendments thereto and
extensions thereof; and (c) all security agreements and instruments related to
the documents identified in (a) and (b).
45. "DIP LENDER" means, collectively: (a) those entities identified as
"Lenders" in the DIP Credit Agreement and their respective successors and
assigns and (b) JPMorgan Chase Bank (as agent bank).
46. "DISBURSING AGENT" means the BII Distribution Trust, in its capacity
as a disbursing agent pursuant to Section VI.C, the Distribution Trust
Representative, any Third Party Disbursing Agent and the Reorganized Debtors
with respect to those Administrative Claims identified in Sections III.A.1.c and
III.A.1.d and Priority Tax Claims.
47. "DISCLOSURE STATEMENT" means the disclosure statement (including all
exhibits and schedules thereto or referenced therein) that relates to the Plan,
as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code, as the same may be amended, modified or supplemented.
48. "DISPUTED CLAIM" means:
a. if no proof of Claim has been Filed by the applicable Bar Date or
has otherwise been deemed timely Filed under applicable law: (i) a Claim
that is listed on a Debtor's Schedules as other than disputed, contingent
or unliquidated, but as to which the applicable Debtor, Reorganized Debtor,
Distribution Trust Representative or, prior to the Confirmation Date, any
other party in interest, has Filed
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an objection by the Claims Objection Bar Date and such objection has not
been withdrawn or denied by a Final Order; or (ii) a Claim that is listed
on a Debtor's Schedules as disputed, contingent or unliquidated; or
b. if a proof of Claim or request for payment of an Administrative
Claim has been Filed by the Bar Date or has otherwise been deemed timely
Filed under applicable law: (i) a Claim for which no corresponding Claim is
listed on a Debtor's Schedules; (ii) a Claim for which a corresponding
Claim is listed on a Debtor's Schedules as other than disputed, contingent
or unliquidated, but the nature or amount of the Claim as asserted in the
proof of Claim varies from the nature and amount of such Claim as it is
listed on the Schedules; (iii) a Claim for which a corresponding Claim is
listed on a Debtor's Schedules as disputed, contingent or unliquidated;
(iv) a Claim for which an objection has been Filed by the applicable
Debtor, Reorganized Debtor, Distribution Trust Representative or, prior to
the Confirmation Date, any other party in interest, by the Claims Objection
Bar Date, and such objection has not been withdrawn or denied by a Final
Order; or (v) a Tort Claim.
49. "DISPUTED INSURED CLAIM" and "Disputed Uninsured Claim" mean,
respectively, an Insured Claim or an Uninsured Claim that is also a Disputed
Claim.
50. "DISTRIBUTION RECORD DATE" means the Confirmation Date.
51. "DISTRIBUTION TRUST ASSETS" means, collectively: (a) Excluded Assets,
Berkshire Sale Proceeds, Recovery Actions, Working Capital Amount Due (if and
when due to the BII Distribution Trust) and any other cash, assets or property
that are to be held for and distributed to holders of Allowed Claims under the
Plan (other than those Administrative Claims and Priority Tax Claims to be
assumed by the Reorganized Debtors in accordance with Sections III.A.1.c,
III.A.1.d and III.A.2); (b) the proceeds of the foregoing; and (c) the funds in
the Burlington Fabrics Irrevocable Trust.
52. "DISTRIBUTION TRUST EXPENSES" means any and all reasonable fees, costs
and expenses incurred by the BII Distribution Trust or the Distribution Trust
Representative (or any Disbursing Agent or professional engaged by the
Distribution Trust Representative) in connection with their respective duties
under the Plan and the BII Distribution Trust Agreement, including, without
limitation, any administrative fees, attorneys' fees and expenses, insurance
fees, taxes, Escrow Expenses and fees payable under 28 U.S.C. Section 1930.
53. "DISTRIBUTION TRUST REPRESENTATIVE" means the trustee appointed by the
Creditors' Committee pursuant to Section IV.B.6.b and identified in the BII
Distribution Trust Agreement (or any successor trustee), in its capacity as the
trustee of the BII Distribution Trust.
54. "DISTRIBUTIONS" means the distributions of cash to be made in
accordance with Article VI.
55. "DOCUMENT WEBSITE" means the Internet site address www.burlington.com
at which all of the exhibits and schedules to the Plan and the Disclosure
Statement will be available to any party in interest and the public.
56. "EFFECTIVE DATE" means a day, as determined by the Debtors, that is
the Business Day as soon as reasonably practicable after all conditions to the
Effective Date in Section IX.B have been met or waived pursuant to Section IX.C.
The Effective Date and the Closing Date will be the same date.
57. "EMERGENCE BONUS" means the cash payment to be made to KERP
Participants on the Effective Date in accordance with Exhibit III.E.
58. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
59. "ESCROW EXPENSES" means those expenses for which the BII Distribution
Trust is responsible under that certain escrow agreement, to be dated on or
about the Effective Date, among the Buyer, BII Distribution Trust and Escrow
Agent (as such term is defined in the Berkshire Agreement).
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60. "ESTATE" means, as to each Debtor, the estate created for that Debtor
in its Reorganization Case pursuant to section 541 of the Bankruptcy Code.
61. "EXECUTORY CONTRACT AND UNEXPIRED LEASE" means a contract or lease to
which one or more of the Debtors is a party that is subject to assumption or
rejection under section 365 of the Bankruptcy Code.
62. "EXCLUDED ASSETS" means those assets, properties, causes of action and
similar rights or interests designated as an "Excluded Asset" in the Berkshire
Agreement or otherwise left by the terms of the Berkshire Agreement with the
Estates on the Effective Date.
63. "FACE AMOUNT" means:
a. when used with reference to a Disputed Insured Claim, either (i)
the full stated amount claimed by the holder of such Claim in any proof of
Claim Filed by the Bar Date, or otherwise deemed timely Filed under
applicable law, if the proof of Claim specifies only a liquidated amount;
(ii) if no proof of Claim is Filed by the Bar Date or otherwise deemed
timely filed under applicable law, that portion, if any, of such Claim
listed on the Debtors' Schedules as undisputed, noncontingent and
liquidated; or (iii) the applicable deductible under the relevant insurance
policy, minus any reimbursement obligations of the applicable Debtor to the
insurance carrier for sums expended by the insurance carrier on account of
such Claim (including defense costs), if such amount is less than the
amount specified in (i) or (ii) above or the proof of Claim specifies an
unliquidated amount; and
b. when used with reference to a Disputed Uninsured Claim, either
(i) the full stated amount claimed by the holder of such Claim in any proof
of Claim Filed by the Bar Date or otherwise deemed timely Filed under
applicable law, if the proof of Claim specifies only a liquidated amount;
or (ii) the amount of the Claim acknowledged by the applicable Debtor,
Reorganized Debtor or Distribution Trust Representative in any objection
Filed to such Claim or in the Schedules as an undisputed, noncontingent and
liquidated Claim, estimated by the Bankruptcy Court pursuant to section
502(c) of the Bankruptcy Code, proposed by the Debtors or established by
the Reorganized Debtors or the Distribution Trust Representative following
the Effective Date, if no proof of Claim has been Filed by the Bar Date or
has otherwise been deemed timely Filed under applicable law or if the proof
of Claim specifies an unliquidated amount.
64. "FEE AUDITOR" means Warren H. Smith & Associates, in its capacity as
fee auditor, pursuant to the Order Appointing Fee Auditor and Establishing
Related Procedures Concerning the Allowance and Payment of Compensation and
Reimbursement of Expenses of Professionals and Members of Official Committees
and Consideration of Fee Applications, entered by the Bankruptcy Court on March
21, 2002.
65. "FEE CLAIM" means a Claim under sections 330(a), 331, 503 or 1103 of
the Bankruptcy Code for compensation of a Professional or other entity for
services rendered or expenses incurred in the Reorganization Cases.
66. "FEE ORDER" means the Administrative Order Establishing Procedures for
Interim Compensation and Reimbursement of Expenses of Professionals, entered by
the Bankruptcy Court on December 7, 2001, as modified by the Order Appointing
Fee Auditor and Establishing Related Procedures Concerning the Allowance and
Payment of Compensation and Reimbursement of Expenses of Professionals and
Members of Official Committees and Consideration of Fee Applications, entered by
the Bankruptcy Court on March 21, 2002.
67. "FILE", "FILED" OR "FILING" means file, filed or filing with the
Bankruptcy Court or its authorized designee in the Reorganization Cases.
68. "FINAL ORDER" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction, as entered on the docket in any
Reorganization Case or the docket of any other court of competent jurisdiction,
that has not been reversed, stayed, modified or amended, and as to which the
time to appeal or seek certiorari or move for a new trial, reargument or
rehearing has expired, and no appeal or petition for certiorari or
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other proceedings for a new trial, reargument or rehearing has been timely
taken, or as to which any appeal that has been taken or any petition for
certiorari that has been timely filed has been withdrawn or resolved by the
highest court to which the order or judgment was appealed or from which
certiorari was sought or the new trial, reargument or rehearing shall have been
denied or resulted in no modification of such order.
69. "INDENTURE TRUSTEE" means the Bank of New York (as successor trustee
to Wachovia Bank of North Carolina, N.A.), as indenture trustee under the
Prepetition Indenture, or any successor thereto.
70. "INSURED CLAIM" means any Claim arising from an incident or occurrence
alleged to have occurred prior to the Petition Date that is covered under an
insurance policy, other than a workers' compensation insurance policy,
applicable to the Debtors or their businesses.
71. "INTERCOMPANY CLAIM" means any claim by a Burlington Company against a
Debtor.
72. "INTEREST" means the rights of the holder of the Old Common Stock, Old
Nonvoting Stock or Old Subsidiary Equity Interest of any Debtor and the rights
of any entity to purchase or demand the issuance of any of the Old Common Stock,
Old Nonvoting Stock or Old Subsidiary Equity Interest of any Debtor, including:
(a) redemption, conversion, exchange, voting, participation and dividend rights;
(b) liquidation preferences; and (c) stock options and warrants.
73. "IRS" means the Internal Revenue Service of the United States of
America.
74. "KERP" means the Debtors' key employee retention program, and all
agreements and plans related thereto, approved by orders of the Bankruptcy Court
dated January 17, 2002, January 28, 2002 and February 27, 2002.
75. "KERP PARTICIPANT" means an employee of the Debtors who, as of the
Effective Date, is a participant in the KERP.
76. "KERP PAYMENTS" means any and all payments due and owing to KERP
Participants under the KERP. KERP Payments do not include the Emergence Bonus.
77. "LIABILITIES" all claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action and liabilities (other than the right
to enforce the Debtors', Reorganized Debtors', BII Distribution Trust's or
Buyer's obligations under the Plan and the Berkshire Agreement and the
contracts, instruments, releases, agreements and documents delivered
thereunder), whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, arising in law, equity or
otherwise, that are based in whole or in part on any act, event, injury,
omission, transaction, agreement, employment, exposure or other occurrence
taking place on or prior to the Effective Date.
78. "NEW COMMON STOCK" means the shares of common stock, par value $0.01
per share, of Reorganized Burlington, authorized pursuant to the amended
certificate of incorporation of Reorganized Burlington in connection with the
Plan.
79. "NEW SUBSIDIARY EQUITY INTERESTS" means the common stock, membership
interests, partnership interests or other equity interests of a Reorganized
Debtor (other than Reorganized Burlington), authorized pursuant to the
Reorganized Debtor's amended certificate of incorporation or similar constituent
document in connection with the Plan.
80. "OLD COMMON STOCK" means the common stock issued by Burlington and
outstanding immediately prior to the Effective Date.
81. "OLD NONVOTING COMMON STOCK" means the nonvoting common stock issued
by Burlington and outstanding immediately prior to the Effective Date.
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82. "OLD SENIOR NOTE CLAIM" means a Claim under or evidenced by the 2005
7.25% Senior Notes, 2027 7.25% Senior Notes or the Prepetition Indenture.
83. "OLD SENIOR NOTES" means, collectively, the 2005 7.25% Senior Notes
and the 2027 7.25% Senior Notes.
84. "OLD SUBSIDIARY EQUITY INTERESTS" means the common stock, membership
interests, partnership interests or other equity interests issued by a Debtor
(other than Burlington) and outstanding immediately prior to the Effective Date.
85. "ORDINARY COURSE PROFESSIONALS ORDER" means the Order Authorizing
Debtors and Debtors in Possession to Retain, Employ and Pay Certain
Professionals in the Ordinary Course of the Debtors' Businesses, entered by the
Bankruptcy Court on or about December 12, 2001, as extended by the Order
Extending Order Authorizing Debtors and Debtors in Possession to Retain, Employ
and Pay Certain Professionals in the Ordinary Course of Their Businesses,
entered by the Bankruptcy Court on December 4, 2002.
86. "PBGC" means the Pension Benefit Guaranty Corporation.
87. "PENSION PLAN" has the meaning given to it in the Berkshire Agreement.
88. "PETITION DATE" means November 15, 2001.
89. "PLAN" means this joint plan of reorganization for the Debtors, to the
extent applicable to any Debtor, and all Exhibits attached hereto or referenced
herein, as the same may be amended, modified or supplemented.
90. "PLAN SUPPLEMENT" means the form of documents specified in Section
XIII.H.
91. "PREPETITION BANK CLAIMS" means an Allowed Claim arising under the
Debtors' Prepetition Credit Facility.
92. "PREPETITION CREDIT FACILITY" means the Credit Agreement, dated as of
September 30, 1988, as amended and restated as of December 5, 2000, by and among
Burlington, as borrower, the lenders party thereto, Chase Bank, as
administrative agent for the Prepetition Lenders, and Chase Manhattan Bank USA,
N.A., as fronting bank, as the same may have been subsequently modified, amended
or supplemented, together with all instruments and agreements related thereto.
93. "PREPETITION INDENTURE" means the Indenture, dated as of September 1,
1995, between Burlington and the Indenture Trustee, governing the 2005 7.25%
Senior Notes and the 2027 7.25% Senior Notes, as the same may have been
subsequently modified, amended or supplemented, together with all instruments
and agreements related thereto.
94. "PREPETITION LENDERS" means, collectively, the lenders party to the
Prepetition Credit Facility.
95. "PRIORITY CLAIM" means a Claim that is entitled to priority in payment
pursuant to section 507(a) of the Bankruptcy Code that is not an Administrative
Claim or a Priority Tax Claim.
96. "PRIORITY TAX CLAIM" means a Claim that is entitled to priority in
payment pursuant to section 507(a)(8) of the Bankruptcy Code.
97. "PROFESSIONAL" means any professional employed in the Reorganization
Cases pursuant to sections 327 or 1103 of the Bankruptcy Code or any
professional or other entity seeking compensation or reimbursement of expenses
in connection with the Reorganization Cases pursuant to section 503(b)(4) of the
Bankruptcy Code.
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98. "PRO RATA" means, when used with reference to a Distribution of
property pursuant to Article III, proportionately so that with respect to a
particular Allowed Claim, the ratio of (a)(i) the amount of property distributed
on account of such Claim to (ii) the amount of such Claim, is the same as the
ratio of (b)(i) the amount of property distributed on account of all Allowed
Claims of the Class in which such Claim is included to (ii) the amount of all
Allowed Claims in that Class.
99. "PURCHASE PRICE" has the meaning given to it in the Berkshire
Agreement.
100. "QUARTERLY DISTRIBUTION DATE" means the last Business Day of the month
following the end of each calendar quarter after the Effective Date; provided,
however, that if the Effective Date is within 45 days of the end of a calendar
quarter, the first Quarterly Distribution Date will be the last Business Day of
the month following the end of the first calendar quarter after the calendar
quarter in which the Effective Date falls.
101. "REAL PROPERTY EXECUTORY CONTRACT AND UNEXPIRED LEASE" means,
collectively, an Executory Contract or Unexpired Lease relating to a Debtor's
interest in real property and any Executory Contracts and Unexpired Leases
granting rights or interests related to or appurtenant to the applicable real
property, including all easements; licenses; permits; rights; privileges;
immunities; options; rights of first refusal; powers; uses; usufructs;
reciprocal easement or operating agreements; vault, tunnel or bridge agreements
or franchises; development rights; and any other interests in real estate or
rights in rem related to the applicable real property.
102. "RECOVERY ACTIONS" means, collectively and individually, preference
actions, fraudulent conveyance actions, rights of setoff and other claims or
causes of action under sections 510, 544, 547, 548, 549, 550 and 553 of the
Bankruptcy Code and other similar state law claims and causes of action.
103. "REINSTATED" OR "REINSTATEMENT" means rendering a Claim or Interest
unimpaired within the meaning of section 1124 of the Bankruptcy Code. Unless the
Plan specifies a particular method of Reinstatement, when the Plan provides that
an Allowed Claim or Allowed Interest will be Reinstated, such Claim or Interest
will be Reinstated, at the applicable Reorganized Debtor's sole discretion, in
accordance with one of the following:
a. The legal, equitable and contractual rights to which such Claim
or Interest entitles the holder will be unaltered; or
b. Notwithstanding any contractual provision or applicable law that
entitles the holder of such Claim or Interest to demand or receive
accelerated payment of such Claim or Interest after the occurrence of a
default:
i. any such default that occurred before or after the
commencement of the applicable Reorganization Case, other than a
default of a kind specified in section 365(b)(2) of the Bankruptcy
Code, will be cured;
ii. the maturity of such Claim or Interest as such maturity
existed before such default will be reinstated;
iii. the holder of such Claim or Interest will be compensated
for any damages incurred as a result of any reasonable reliance by
such holder on such contractual provision or such applicable law; and
iv. the legal, equitable or contractual rights to which such
Claim or Interest entitles the holder of such Claim or Interest will
not otherwise be altered.
104. "RELEASED PARTIES" means, collectively, any Debtor, any Reorganized
Debtor, any Estate, the Buyer (including its subsidiaries), the BII Distribution
Trust, the Distribution Trust Representative, any member of the Creditors'
Committee or any Prepetition Lender and each of their respective present or
former directors, officers, employees, attorneys, accountants, underwriters,
investment bankers, financial advisors and agents, acting in such capacity.
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105. "REMAINING PROCEEDS" means the aggregate proceeds of the Distribution
Trust Assets, less amounts paid or reserved by the BII Distribution Trust or
Distribution Trust Representative on account of Administrative Claims, Class 1
Claims, Class 2 Claims, Class 3 Claims, Class 5 Claims and the Distribution
Trust Expenses.
106. "REORGANIZATION CASE" means: (a) when used with reference to a
particular Debtor, the chapter 11 case pending for that Debtor in the Bankruptcy
Court and (b) when used with reference to all Debtors, the chapter 11 cases
pending for the Debtors in the Bankruptcy Court.
107. "REORGANIZED . . ." means, when used in reference to a particular
Debtor, such Debtor on and after the Effective Date.
108. "RESTRUCTURING TRANSACTIONS" means, collectively, those mergers,
consolidations, restructurings, dispositions, liquidations or dissolutions that
the Debtors or Reorganized Debtors determine to be necessary or appropriate to
effect a corporate restructuring of their respective businesses or otherwise to
simplify the overall corporate structure of the Reorganized Debtors.
109. "SCHEDULES" means the schedules of assets and liabilities and the
statements of financial affairs Filed by the Debtors on or about February 13,
2002, as required by section 521 of the Bankruptcy Code and the Official
Bankruptcy Forms, as the same may have been or may be amended, modified or
supplemented.
110. "SECONDARY LIABILITY CLAIM" means a Claim that arises from a Debtor
being liable as a guarantor of, or otherwise being jointly, severally or
secondarily liable for, any contractual obligation of another Debtor, including
any Claim based on: (a) guaranties of collection, payment or performance; (b)
indemnity bonds, obligations to indemnify or obligations to hold harmless; (c)
performance bonds; (d) contingent liabilities arising out of contractual
obligations or out of undertakings (including any assignment or other transfer)
with respect to leases, operating agreements or other similar obligations made
or given by a Debtor relating to the obligations or performance of another
Debtor; or (e) any other joint or several liability that any Debtor may have in
respect of any contractual obligation that is the basis of a Claim.
111. "SECURED CLAIM" means a Claim that is secured by a lien on property in
which an Estate has an interest or that is subject to setoff under section 553
of the Bankruptcy Code, to the extent of the value of the Claim holder's
interest in the applicable Estate's interest in such property or to the extent
of the amount subject to setoff, as applicable, as determined pursuant to
sections 506(a) and, if applicable, 1129(b) of the Bankruptcy Code.
112. "STIPULATION OF AMOUNT AND NATURE OF CLAIM" means a stipulation or
other agreement between the applicable Debtor, Reorganized Debtor or
Distribution Trust Representative and a holder of a Claim or Interest, or an
agreed order of the Bankruptcy Court, establishing the amount and nature of a
Claim or Interest.
113. "SUPPLEMENTAL EXECUTIVE RETIREMENT PLANS" means any Supplemental
Executive Retirement Plan offered or sponsored by Burlington or any other
Debtor, and any agreements, arrangements, plans or insurance policies related
thereto, at any time prior to the Effective Date.
114. "TAX" means (a) any net income, alternative or add-on minimum, gross
income, gross receipts, sales, use, ad valorem, value added, transfer,
franchise, profits, license, property, environmental or other tax, assessment or
charge of any kind whatsoever (together in each instance with any interest,
penalty, addition to tax or additional amount) imposed by any federal, state,
local or foreign taxing authority; or (b) any liability for payment of any
amounts of the foregoing types as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any agreement or
arrangement whereby liability for payment of any such amounts is determined by
reference to the liability of any other entity.
115. "THIRD PARTY DISBURSING AGENT" means an entity designated by the Plan
or the Distribution Trust Representative to act as a Disbursing Agent pursuant
to Section VI.C.
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116. "TORT CLAIM" means any Claim that has not been settled, compromised or
otherwise resolved that (a) arises out of allegations of personal injury,
wrongful death, property damage, products liability or similar legal theories of
recovery; or (b) arises under any federal, state or local statute, rule,
regulation or ordinance governing, regulating or relating to health, safety,
hazardous substances or the environment.
117. "TRADE CLAIM" means any Unsecured Claim arising from or with respect
to the sale of goods or rendition of services prior to the Petition Date,
including any Claim of an employee that is not a Priority Claim.
118. "UNINSURED CLAIM" means any Claim that is not an Insured Claim.
119. "UNSECURED CLAIM" means any Claim that is not an Administrative Claim,
Cure Amount Claim, Priority Claim, Priority Tax Claim, Secured Claim or
Intercompany Claim.
120. "UNSECURED CLAIMS RESERVE" means the reserve established pursuant to
Section VI.E.1 for Claims in Class 4, which reserve will be maintained in trust
for holders of Allowed Claims in Class 4.
121. "VOTING DEADLINE" means the deadline for submitting Ballots to accept
or reject the Plan in accordance with section 1126 of the Bankruptcy Code that
is specified in the Disclosure Statement, the Ballots or related solicitation
documents approved by the Bankruptcy Court.
122. "WORKING CAPITAL AMOUNT DUE" means the cash, if any, due to the BII
Distribution Trust following the adjustment of the Purchase Price pursuant to
Section 1.05 of the Berkshire Agreement.
B. RULES OF INTERPRETATION AND COMPUTATION OF TIME
1. RULES OF INTERPRETATION
For purposes of the Plan, unless otherwise provided herein: (a)
whenever from the context it is appropriate, each term, whether stated in the
singular or the plural, will include both the singular and the plural; (b)
unless otherwise provided in the Plan, any reference in the Plan to a contract,
instrument, release or other agreement or document being in a particular form or
on particular terms and conditions means that such document will be
substantially in such form or substantially on such terms and conditions; (c)
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 pursuant to the Plan or Confirmation Order; (d) any
reference to an entity as a holder of a Claim or Interest includes that entity's
successors, assigns and affiliates; (e) all references in the Plan to Sections,
Articles and Exhibits are references to Sections, Articles and Exhibits of or to
the Plan; (f) the words "herein," "hereunder" and "hereto" refer to the Plan in
its entirety rather than to a particular portion of the Plan; (g) captions and
headings to Articles and Sections are inserted for convenience of reference only
and are not intended to be a part of or to affect the interpretation of the
Plan; (h) subject to the provisions of any contract, certificates of
incorporation, by-laws, similar constituent documents, instrument, release or
other agreement or document entered into or delivered in connection with the
Plan, the rights and obligations arising under the Plan will be governed by, and
construed and enforced in accordance with, federal law, including the Bankruptcy
Code and the Bankruptcy Rules; and (i) the rules of construction set forth in
section 102 of the Bankruptcy Code will apply.
2. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) will apply.
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ARTICLE II.
CLASSES OF CLAIMS AND INTERESTS
All Claims and Interests, except Administrative Claims and Priority
Tax Claims, are placed in the following Classes. In accordance with section
1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax
Claims, as described in Section III.A, have not been classified and thus are
excluded from the following Classes. A Claim or Interest is classified in a
particular Class only to the extent that the Claim or Interest qualifies within
the description of that Class and is classified in other Classes to the extent
that any remainder of the Claim or Interest qualifies within the description of
such other Classes.
A. UNIMPAIRED CLASSES OF CLAIMS
1. CLASS 1 (UNSECURED PRIORITY CLAIMS): Unsecured Claims against any
Debtor that are entitled to priority under section 507(a)(3), 507(a)(4),
507(a)(5) or 507(a)(6) of the Bankruptcy Code.
2. CLASS 2 (PREPETITION BANK CLAIMS): Secured Claims arising under the
Debtors' Prepetition Credit Facility.
3. CLASS 3 (OTHER SECURED CLAIMS): Secured Claims against any Debtor that
are not classified in Class 2.
B. IMPAIRED CLASSES OF CLAIMS AND INTERESTS
1. CLASS 4 (GENERAL UNSECURED CLAIMS): Unsecured Claims against any
Debtor that are not otherwise classified under the Plan.
2. CLASS 5 (CONVENIENCE CLAIMS): Unsecured Claims against any Debtor that
otherwise would be classified in Class 4, but with respect to each such claim
either (a) the claim is equal to or less than $1,500 or (b) the claim is reduced
to $1,500 pursuant to an election by such holder made on the ballot provided for
voting on the Plan by the Voting Deadline. For purposes of treatment under Class
5, multiple Claims of a holder against a particular Debtor arising in a series
of similar or related transactions between such Debtor and the original holder
of such claims will be treated as a single Claim and no splitting of Claims will
be recognized for purposes of this Distribution.
3. CLASS 6 (PENALTY CLAIMS): Unsecured Claims against the Debtors for any
fine, penalty or forfeiture, or for multiple, exemplary or punitive damages, to
the extent that such Claims are not compensation for the Claim holder's actual
pecuniary loss.
4. CLASS 7 (INTERCOMPANY CLAIMS): Claims of a Burlington Company against
a Debtor that are not Administrative Claims.
5. CLASS 8 (EQUITY INTERESTS): Interests on account of the Old Common
Stock, the Old Nonvoting Common Stock and the Old Subsidiary Equity Interests.
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ARTICLE III.
TREATMENT OF CLAIMS AND INTERESTS
A. UNCLASSIFIED CLAIMS
1. PAYMENT OF ADMINISTRATIVE CLAIMS
a. ADMINISTRATIVE CLAIMS IN GENERAL
Except as specified in this Section III.A.1, and subject to the bar
date provisions herein, unless otherwise agreed to by the holder of an
Administrative Claim and the Distribution Trust Representative, each holder of
an Allowed Administrative Claim will receive in full satisfaction of its
Administrative Claim cash from the BII Distribution Trust equal to the Allowed
amount of such Administrative Claim either (i) on the Effective Date or (ii) if
the Administrative Claim is not allowed as of the Effective Date, 30 days after
the date on which an order allowing such Administrative Claim becomes a Final
Order or a Stipulation of Amount and Nature of Claim is executed by the
Distribution Trust Representative and the holder of the Administrative Claim;
provided, however, that those Administrative Claims identified in Sections
III.A.1.c and III.A.1.d shall be assumed by the Reorganized Debtors and
satisfied as set forth in Sections III.A.1.c and III.A.1.d. The BII Distribution
Trust shall have no liability to holders of those Administrative Claims
identified in Sections III.A.1.c and III.A.1.d.
b. STATUTORY FEES
On or before the Effective Date, Administrative Claims for fees
payable pursuant to 28 U.S.C. Section 1930, as determined by the Bankruptcy
Court at the Confirmation Hearing, will be paid in cash equal to the amount of
such Administrative Claims by the Debtors or the BII Distribution Trust, as
applicable. After the Effective Date, all fees payable pursuant to 28 U.S.C.
Section 1930 will be paid by the BII Distribution Trust, in accordance therewith
until the closing of the Reorganization Cases pursuant to section 350(a) of the
Bankruptcy Code.
c. ORDINARY COURSE LIABILITIES
Except as otherwise specifically provided in the Plan, (i)
Administrative Trade Claims, (ii) Administrative Claims of governmental units
for Taxes (including Tax audit Claims related to Tax years commencing after the
Petition Date), (iii) Administrative Claims arising from Assumed Contracts
(including those contracts and leases of the kind described in Sections V.A and
V.F) and (iv) KERP Payments shall be assumed by the Reorganized Debtors and
satisfied in full pursuant to the terms and conditions of the particular
transaction giving rise to such Administrative Claims or as otherwise stated in
the Plan or agreed upon by the holders of such Claims and the Reorganized
Debtors, without any further action by the holders of such Administrative
Claims.
d. CLAIMS UNDER THE DIP CREDIT AGREEMENT
Unless otherwise agreed by the DIP Lenders pursuant to the DIP Credit
Agreement, on or before the Effective Date, Allowed Administrative Claims under
or evidenced by the DIP Credit Agreement will be paid in cash equal to the
amount of such Allowed Administrative Claims by the Debtors or the Reorganized
Debtors. On or before the Effective Date, the Buyer will cause replacement
letters of credit to be issued to each holder of (or, at the Buyer's election,
if permitted by the DIP Lenders, secure back-to-back arrangements with respect
to) a letter of credit issued under the DIP Credit Agreement. The BII
Distribution Trust shall have no liability on account of the Claims set forth in
this Section III.A.1.d.
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e. BAR DATES FOR ADMINISTRATIVE CLAIMS
i. GENERAL BAR DATE PROVISIONS
Except as otherwise provided in Section III.A.1.e.ii, unless
previously Filed, requests for payment of Administrative Claims must be Filed
and served on the Distribution Trust Representative, pursuant to the procedures
specified in the Confirmation Order and the notice of entry of the Confirmation
Order, no later than 15 days after the Effective Date. Holders of Administrative
Claims that are required to File and serve a request for payment of such
Administrative Claims and that do not File and serve such a request by the
applicable bar date will be forever barred from asserting such Administrative
Claims against the Debtors, Reorganized Debtors, Estates, BII Distribution
Trust, Distribution Trust Representative or their respective property, and such
Administrative Claims will be deemed discharged as of the Effective Date.
Objections to such requests must be Filed and served on the Distribution Trust
Representative and the requesting party by the later of (a) 90 days after the
Effective Date or (b) 30 days after the Filing of the applicable request for
payment of Administrative Claims.
ii. BAR DATES FOR CERTAIN ADMINISTRATIVE CLAIMS
A. PROFESSIONAL COMPENSATION
Professionals or other entities asserting a Fee Claim for services
rendered before the Effective Date must File and serve on the Distribution Trust
Representative, the Fee Auditor and such other entities who are designated by
the Bankruptcy Rules, the Confirmation Order, the Fee Order or other order of
the Bankruptcy Court, an application for final allowance of such Fee Claim no
later than 15 days after the Effective Date; provided, however, that any
professional who may receive compensation or reimbursement of expenses pursuant
to the Ordinary Course Professionals Order may continue to receive such
compensation and reimbursement of expenses for services rendered before the
Effective Date, without further Bankruptcy Court review or approval, pursuant to
the Ordinary Course Professionals Order. Objections to any Fee Claim must be
Filed and served on the parties who were served with such application and the
requesting party by the later of (a) 90 days after the Effective Date or (b) 30
days after the Filing of the applicable request for payment of the Fee Claim. To
the extent necessary, entry of the Confirmation Order will amend and supersede
any previously entered order of the Bankruptcy Court, including the Fee Order,
regarding the payment of Fee Claims.
B. ORDINARY COURSE LIABILITIES
Holders of (i) Administrative Trade Claims, (ii) Administrative Claims
of governmental units for Taxes (including Tax audit Claims related to Tax years
commencing after the Petition Date), (iii) Administrative Claims arising from
Assumed Contracts (including those contracts and leases of the kind described in
Sections V.A and V.F) and (iv) KERP Payments will not be required to File or
serve any request for payment of such Administrative Claims. Such Administrative
Claims will be satisfied pursuant to Section III.A.1.c.
C. CLAIMS UNDER THE DIP CREDIT AGREEMENT
Holders of Administrative Claims under or evidenced by the DIP Credit
Agreement will not be required to File or serve any request for payment of such
Claims; provided, however, that holders of such Administrative Claims must
deliver to the Debtors or the Reorganized Debtors, as applicable, a statement of
the amount of the Administrative Claim under or evidenced by the DIP Credit
Agreement asserted by such holder no later than 15 days after the Effective
Date. Such Administrative Claims will be satisfied pursuant to Section
III.A.1.d.
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2. PAYMENT OF PRIORITY TAX CLAIMS
a. PRIORITY TAX CLAIMS
Unless otherwise agreed by the holder of a Priority Tax Claim and the
Reorganized Debtors, each holder of an Allowed Priority Tax Claim will receive
in full satisfaction of its Claim cash from the Reorganized Debtors equal to the
Allowed amount of such Priority Tax Claim, without premium or penalty, either
(i) on the Effective Date or (ii) if the Priority Tax Claim is not allowed as of
the Effective Date, 30 days after the date on which an order allowing such
Priority Tax Claim becomes a Final Order or a Stipulation of Amount and Nature
of Claim is executed by the Reorganized Debtors and the holder of the Priority
Tax Claims. All Allowed Priority Tax Claims shall be assumed by the Reorganized
Debtors and satisfied in full as set forth in the Plan or as otherwise agreed
upon by the holders of such Claims and the Reorganized Debtors. The BII
Distribution Trust shall have no liability to holders of Priority Tax Claims.
b. OTHER PROVISIONS CONCERNING TREATMENT OF PRIORITY TAX CLAIMS
Notwithstanding the provisions of Section III.A.2.a, the holder of an
Allowed Priority Tax Claim will not be entitled to receive any payment on
account of any penalty arising with respect to or in connection with the Allowed
Priority Tax Claim. Any such Claim or demand for any such penalty will be
subject to treatment in Class 6, and the holder of an Allowed Priority Tax Claim
may not assess or attempt to collect such penalty from the Debtors, Reorganized
Debtors, Estates, BII Distribution Trust, Distribution Trust Representative or
their respective property.
B. UNIMPAIRED CLASSES OF CLAIMS
1. CLASS 1 CLAIMS (UNSECURED PRIORITY CLAIMS) are unimpaired. On the
Effective Date, each holder of an Allowed Claim in Class 1 will receive cash
from the BII Distribution Trust equal to the amount of such Allowed Claim.
2. CLASS 2 CLAIMS (PREPETITION BANK CLAIMS) ARE UNIMPAIRED. On the
Effective Date, each holder of an Allowed Claim in Class 2 will receive cash
from the BII Distribution Trust equal to the amount of such Allowed Claim.
3. CLASS 3 CLAIMS (OTHER SECURED CLAIMS) ARE UNIMPAIRED. On the Effective
Date, each holder of an Allowed Claim in Class 3 will receive cash from the BII
Distribution Trust equal to the amount of such Allowed Claim.
C. Impaired Classes of Claims and Interests
1. CLASS 4 CLAIMS (GENERAL UNSECURED CLAIMS) ARE IMPAIRED. On the
Effective Date, each holder of an Allowed Unsecured Claim in Class 4 will
receive, in full satisfaction of all of its Class 4 Claims, cash from the BII
Distribution Trust in the amount of the holder's Pro Rata share of the Remaining
Proceeds.
2. CLASS 5 CLAIMS (CONVENIENCE CLAIMS) ARE IMPAIRED. On the Effective
Date, each holder of an Allowed Claim in Class 5 will receive cash from the BII
Distribution Trust equal to 40% of the amount of such Claim in full satisfaction
of such Allowed Claim (as reduced, if applicable, pursuant to an election
thereof), subject to an aggregate cap of $350,000 to be distributed to holders
of Allowed Claims in Class 5.
3. CLASS 6 CLAIMS (PENALTY CLAIMS) ARE IMPAIRED. No property will be
distributed to or retained by the holders of Allowed Claims in Class 6, and such
Claims will be discharged as of the Effective Date.
4. CLASS 7 CLAIMS (INTERCOMPANY CLAIMS) ARE IMPAIRED. No property will be
distributed to or retained by the Burlington Companies on account of Claims in
Class 7, and such Claims will be discharged as of the Effective Date.
Notwithstanding this treatment of Class 7 Claims, each of the Burlington
Companies holding an
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Intercompany Claim in Class 7 will be deemed to have accepted the Plan. See also
Section IV.B.7.d for a discussion of certain Intercompany Claims.
5. CLASS 8 CLAIMS (EQUITY INTERESTS) ARE IMPAIRED. No property will be
distributed to or retained by the holders of Allowed Interests in Class 8, and
such Interests shall be cancelled on the Effective Date.
D. SPECIAL PROVISIONS REGARDING THE TREATMENT OF ALLOWED SECONDARY LIABILITY
CLAIMS
The classification and treatment of Allowed Claims under the Plan take
into consideration all Allowed Secondary Liability Claims. On the Effective
Date, Allowed Secondary Liability Claims will be treated as follows:
1. The Allowed Secondary Liability Claims arising from or related to any
Debtor's joint or several liability for the obligations under any Executory
Contract or Unexpired Lease that is being assumed or deemed assumed by another
Debtor or under any Executory Contract or Unexpired Lease that is being assumed
by and assigned to another Debtor will be Reinstated.
2. Except as provided in Section III.D.1, holders of all other Allowed
Secondary Liability Claims will be entitled to only one Distribution in respect
of such underlying Allowed Claim and will be deemed satisfied in full by the
Distributions on account of the related underlying Allowed Claim. No multiple
recovery on account of any Allowed Secondary Liability Claim will be provided or
permitted.
E. SPECIAL PROVISIONS REGARDING ALLOWANCE AND PAYMENT OF EMERGENCE BONUS FOR
KERP PARTICIPANTS
On the Effective Date, KERP Participants will receive a cash payment
from the BII Distribution Trust calculated in the manner set forth on Exhibit
III.E on account of the substantial contribution that the KERP Participants made
to the Debtors' reorganization efforts and the development and negotiation of
the Plan. KERP Participants will not be required to File any type of request for
payment of the Emergence Bonus and, upon the occurrence of the Effective Date,
the Emergence Bonus will be immediately due and payable to each KERP Participant
and will constitute an Administrative Claim to be paid under Section III.A.1.a.
F. DISALLOWANCE OF CLAIMS OF PARTIES HOLDING PROPERTY RECOVERABLE PURSUANT TO
A RECOVERY ACTION
Notwithstanding any other provisions of the Plan, no payments or
Distributions will be made on account of any Claims of holders from which
property is recoverable pursuant to a Recovery Action. Such Claims will be
disallowed in their entirety until such time as such holder has paid the amount
or turned over the property that is the subject of the Recovery Action.
ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. CONTINUED CORPORATE EXISTENCE AND VESTING OF ASSETS
Except as otherwise provided herein (and subject to the Restructuring
Transaction provisions of Section IV.B), each Debtor will, as a Reorganized
Debtor, continue to exist on and after the Effective Date as a separate
corporate entity, with all the powers of a corporation, or limited liability
company, as applicable, under applicable law and without prejudice to any right
to alter or terminate such existence (whether by merger, dissolution or
otherwise) under applicable state law. Except as otherwise provided herein or in
the Berkshire Agreement, as of the Effective Date, all property of the
respective Estates of the Debtors, and any property acquired by a Debtor or
Reorganized Debtor under the Plan, will vest in the applicable Reorganized
Debtor, free and clear of all Claims, liens, charges, other encumbrances and
Interests. On and after the Effective Date, each Reorganized Debtor may operate
its businesses and may use, acquire and dispose of property without supervision
or approval by the Bankruptcy Court and free of any restrictions of the
Bankruptcy Code or Bankruptcy Rules. Without limiting
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the foregoing, each Reorganized Debtor may pay the charges that it incurs on or
after the Effective Date for professionals' fees, disbursements, expenses or
related support services without application to the Bankruptcy Court.
On the Effective Date, the Distribution Trust Assets will be
transferred to and vest in the BII Distribution Trust, free and clear of all
Claims, liens, charges, other encumbrances and Interests. Except as otherwise
provided herein or in the BII Distribution Trust Agreement, the Distribution
Trust Representative may compromise or settle any Claims without supervision or
approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy
Code or Bankruptcy Rules and may pay the charges that it incurs on or after the
Effective Date for professionals' fees, disbursements, expenses or related
support services (including fees relating to the preparation of Professional fee
applications) without application to the Bankruptcy Court.
B. RESTRUCTURING TRANSACTIONS
1. RESTRUCTURING TRANSACTIONS GENERALLY
On or after the Confirmation Date, but subject to the terms of the
Berkshire Agreement, the applicable Debtors or Reorganized Debtors may enter
into such Restructuring Transactions and may take such actions as may be
necessary or appropriate to effect a corporate restructuring of their respective
businesses or simplify the overall corporate structure of the Reorganized
Debtors. Such restructuring may include one or more mergers, consolidations,
restructurings, dispositions, liquidations or dissolutions, as may be determined
by the Debtors or the Reorganized Debtors to be necessary or appropriate. The
actions to effect these transactions may include: (a) 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 of the Plan and that satisfy the applicable
requirements of applicable state law and such other terms to which the
applicable entities may agree; (b) the execution and delivery of appropriate
instruments of transfer, assignment, assumption or delegation of any asset,
property, right, liability, duty or obligation on terms consistent with the
terms of the Plan and having such other terms to which the applicable entities
may agree; (c) the filing of appropriate certificates or articles of merger,
consolidation or dissolution pursuant to applicable state law; and (d) all other
actions that the applicable entities determine to be necessary or appropriate,
including making filings or recordings that may be required by applicable state
law in connection with such transactions.
2. OBLIGATIONS OF ANY SUCCESSOR CORPORATION IN A RESTRUCTURING
TRANSACTION
Subject to the terms of the Berkshire Agreement, the Restructuring
Transactions may include one or more mergers, consolidations, restructurings,
dispositions, liquidations or dissolutions, as may be determined by the Debtors
or Reorganized Debtors to be necessary or appropriate to result in substantially
all of the respective assets, properties, rights, liabilities, duties and
obligations of certain of the Reorganized Debtors vesting in one or more
surviving, resulting or acquiring corporations. In each case in which the
surviving, resulting or acquiring corporation in any such transaction is a
successor to a Reorganized Debtor, 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 described in
Sections III.A.1.c, III.A.1.d or III.A.2.a 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.
3. IMPLEMENTATION OF BERKSHIRE AGREEMENT
On the Effective Date, Reorganized Burlington will issue and sell the
New Common Stock to the Buyer in consideration for its payment, on behalf of
Reorganized Burlington, of the Purchase Price to the BII Distribution Trust, in
cash, subject to adjustment in accordance with the Berkshire Agreement. The BII
Distribution Trust will use the Purchase Price and its other assets to fund all
Distributions to be made by the BII Distribution Trust under the Plan. The
Berkshire Agreement and its terms are incorporated herein and are made a part of
the Plan. On or after the Confirmation Date, the applicable Debtors or
Reorganized Debtors may take such actions as are consistent with the Berkshire
Agreement and may be necessary or appropriate to effect the transactions
contemplated by the Berkshire Agreement, including: (a) the execution and
delivery of appropriate agreements or other documents containing terms that are
consistent with the terms of the Plan, the Berkshire
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Agreement and such other terms to which the applicable entities may agree; (b)
the execution and delivery of appropriate instruments of transfer, assignment,
assumption or delegation of any asset, property, right, liability, duty or
obligation on terms consistent with the terms of the Plan, the Berkshire
Agreement and such other terms to which the applicable entities may agree; and
(c) all other actions that the applicable entities determine to be necessary or
appropriate, including making filings or recordings that may be required by
applicable state law in connection with such transactions. If the Buyer is not
the successful bidder at the Auction, the Debtors will amend the Plan to provide
for the implementation of the successful bid and agreement of the successful
bidder.
4. ISSUANCE OF NEW COMMON STOCK
On the Effective Date, Reorganized Burlington will be authorized to
issue 100 shares, par value $.01 per share, of New Common Stock, all of which
will be issued and sold to the Buyer on the Effective Date and will constitute
all of the issued and outstanding shares of Reorganized Burlington's capital
stock. There will be no options of any kind outstanding with respect to capital
stock of Reorganized Burlington.
5. ISSUANCE OF NEW SUBSIDIARY EQUITY INTERESTS
On the Effective Date, each of the Burlington Subsidiary Debtors will
issue the New Subsidiary Equity Interests, which will constitute all of the
outstanding equity interests in such Burlington Subsidiary Debtor. There will be
no options of any kind outstanding with respect to any equity interests in any
of the Burlington Subsidiary Debtors.
6. BII DISTRIBUTION TRUST
a. BII DISTRIBUTION TRUST
Prior to the Effective Date, the BII Distribution Trust shall be
established pursuant to the BII Distribution Trust Agreement, for the purpose of
liquidating the Distribution Trust Assets, resolving all Disputed Claims and
making all Distributions to holders of Allowed Claims (other than the
Administrative Claims identified in Sections III.A.1.c and III.A.1.d and
Priority Tax Claims) in accordance with the terms of the Plan. On the Effective
Date, the Distribution Trust Assets shall be transferred to and vest in the BII
Distribution Trust. Subject to and to the extent set forth in Section IV.B.6 and
any other applicable provision of the Plan, the Confirmation Order, the BII
Distribution Trust Agreement or other agreement (or any other order of the Court
entered pursuant to or in furtherance hereof), the BII Distribution Trust (and
the Distribution Trust Representative on its behalf) shall be empowered to: (i)
effect all actions and execute all agreements, instruments and other documents
necessary to implement the Plan and the Berkshire Agreement; (ii) market,
liquidate, sell, transfer or otherwise dispose of the Distribution Trust Assets;
(iii) make Distributions contemplated hereby; (iv) establish and administer any
reserves with respect to Disputed Claims; (v) comply herewith and with its
obligations hereunder; (vi) object to Claims and resolve such objections as set
forth in Section VII.A; (vii) employ professionals to represent it with respect
to its responsibilities; and (viii) exercise such other powers as may be vested
in each of them or as deemed by each of them to be necessary and proper to
implement the provisions thereof. The BII Distribution Trust shall be a
"representative of the estate" under section 1123(b)(3)(B) of the Bankruptcy
Code.
b. DISTRIBUTION TRUST REPRESENTATIVE
The Distribution Trust Representative shall be appointed by the
Creditors' Committee prior to the Effective Date and shall be the exclusive
trustee of the assets of the BII Distribution Trust for purposes of 31 U.S.C.
Section 3713(b) and 26 U.S.C. Section 6012(b)(3), as well as the representative
of the consolidated Estates of the Debtors appointed pursuant to section
1123(b)(3)(B) of the Bankruptcy Code. Powers, rights, and responsibilities of
the Distribution Trust Representative shall be specified in the BII Distribution
Trust Agreement and shall include the authority and responsibility to: (i)
receive, manage, invest, supervise, liquidate and protect the Distribution Trust
Assets; (ii) pay taxes or other obligations incurred by the trust; (iii) retain
and compensate, without further order of the Bankruptcy Court, the services of
professionals to advise and assist in the administration, prosecution and
Distribution of the Distribution Trust Assets; (iv) calculate and implement
Distributions of the Distribution Trust Assets; and (v) prosecute, compromise
and settle in accordance with the specified terms of the Plan and the
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BII Distribution Trust Agreement all Disputed Claims. Other rights and duties of
the Distribution Trust Representative and the beneficiaries shall be as set
forth in the BII Distribution Trust Agreement. The Distribution Trust
Representative shall liquidate the Distribution Trust Assets in accordance with
the applicable provisions of the BII Distribution Trust Agreement.
c. FEES AND EXPENSES OF THE BII DISTRIBUTION TRUST
Except as otherwise ordered by the Court, the Distribution Trust
Expenses shall be paid from the Distribution Trust Assets in accordance with the
BII Distribution Trust Agreement.
d. REPORTS TO BE FILED BY THE BII DISTRIBUTION TRUST
The Distribution Trust Representative, on behalf of the BII
Distribution Trust, shall File with the Court (and provide to any other party
entitled to receive any such report pursuant to the BII Distribution Trust
Agreement) quarterly reports regarding the administration of property subject to
its ownership and control pursuant to the Plan, Distributions made by it and
other matters required to be included in such report.
e. EXPENSES FOR PROFESSIONALS OF THE BII DISTRIBUTION TRUST
The Distribution Trust Representative, on behalf of the BII
Distribution Trust, may employ, without further order of the Court,
professionals to assist in carrying out its duties hereunder and may compensate
and reimburse the expenses of these professionals without further order of the
Court from the Distribution Trust Assets in accordance with the BII Distribution
Trust Agreement.
f. INDEMNIFICATION
The BII Distribution Trust Agreement may include reasonable and
customary indemnification provisions that are acceptable to the Creditors'
Committee. Any such indemnification shall be the sole responsibility of the BII
Distribution Trust.
g. TAX TREATMENT
The BII Distribution Trust is generally intended to be treated for
federal income tax purposes as a liquidating trust for the benefit of creditors
within the meaning of Treasury Regulations section 301.7701-4(d); accordingly,
the distribution to the BII Distribution Trust in respect of holders of Allowed
Claims shall be treated for all purposes of the Internal Revenue Code as a
transfer of such distribution to the creditors who are the beneficiaries of the
BII Distribution Trust, and a transfer by the beneficiary-creditors to the BII
Distribution Trust, who will be treated as the grantors and deemed owners of the
BII Distribution Trust. The Distribution Trust Representative shall be required
by the BII Distribution Trust Agreement to file federal tax returns for the BII
Distribution Trust as a grantor trust (and/or a disputed ownership fund with
respect to the Unsecured Claims Reserve) pursuant to applicable Treasury
Regulations, and any income of the BII Distribution Trust will be treated as
subject to tax on a current basis. The BII Distribution Trust Agreement will
provide that the Distribution Trust Representative may pay such taxes on behalf
of the beneficiary-creditors from the Distribution Trust Assets. In addition,
the BII Distribution Trust Agreement will require consistent valuation of the
property distributed to the BII Distribution Trust by the Distribution Trust
Representative and the beneficiary-creditors for all federal income tax
purposes. The BII Distribution Trust Agreement will provide that the sole
purpose of the BII Distribution Trust will be to liquidate and distribute
(including objecting to Claims and determining the proper recipients and amounts
of Distributions to be made from the BII Distribution Trust, including the
Unsecured Claims Reserve) the assets transferred to it for the benefit of the
beneficiary-creditors who shall be determined to hold Allowed Claims as
expeditiously as reasonably possible, not to engage in any trade or business,
and to terminate upon the completion of such liquidation and distribution. The
BII Distribution Trust Agreement will provide that such termination shall occur
no later than five years after the Effective Date, unless the Bankruptcy Court
shall approve an extension based upon a finding that such an extension is
necessary for the BII Distribution Trust to complete its claims resolution and
liquidating purpose. The BII Distribution Trust Agreement will also limit the
investment powers of the Distribution Trust Representative in accordance with
IRS Rev. Proc. 94-45 and will require the BII Distribution Trust to distribute
at
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least annually to the beneficiary-creditors (as such may have been determined at
such time) its net income (net of any taxes paid on behalf of the
beneficiary-creditors), except for amounts retained as reasonably necessary to
maintain the value of the Distribution Trust Assets or to meet claims and
contingent liabilities (including Disputed Claims).
7. TRANSFER OF ASSETS FROM THE BURLINGTON FABRICS IRREVOCABLE TRUST
a. On the Petition Date, various creditors asserted Claims against
Burlington Fabrics, including the Prepetition Lenders, Burlington
Investment and various trade creditors. The Claims of the Prepetition
Lenders were secured by, among other things, a pledge of substantially all
of Burlington Fabrics' assets.
b. Pursuant to orders of the Bankruptcy Court, Burlington Fabrics
sold substantially all of its assets, and the proceeds of these sales and
Burlington Fabrics' other remaining assets were transferred to the
Burlington Fabrics Irrevocable Trust. Also pursuant to these orders, the
liens, Claims and other interests of the Prepetition Lenders, Burlington
Investment and the other creditors of Burlington Fabrics attached to the
sale proceeds that were transferred to the Burlington Fabrics Irrevocable
Trust.
c. On the Effective Date, the funds held in the Burlington Fabrics
Irrevocable Trust, after the payment of or reserve for any unpaid expenses
of the Burlington Fabrics Trustee under the Burlington Fabrics Trust
Agreement, shall be transferred to the BII Distribution Trust for
Distribution to the creditors of Burlington Fabrics pursuant to Article VI.
Upon such transfer to the BII Distribution Trust, the obligations of the
Burlington Fabrics Irrevocable Trust and the Burlington Fabrics Trustee to
pay the Claims of Burlington Fabrics' creditors shall be discharged in
full, and all such Claims shall be transferred to the BII Distribution
Trust and shall be paid by the BII Distribution Trust under the Plan.
d. The Distributions of the proceeds of the Burlington Fabrics
Irrevocable Trust by the BII Distribution Trust and the Distribution Trust
Representative in accordance with the Plan shall be Distributions to
satisfy in full and discharge the Claims asserted against Burlington
Fabrics as of the Petition Date, including the Claims of the Prepetition
Lenders. As a result of the substantive consolidation of the Debtors'
Estates pursuant to Article VIII, Distributions that otherwise would have
been made from the Burlington Fabrics Irrevocable Trust to Burlington
Investment on account of its Claim against Burlington Fabrics will be
deemed to have been made to the creditors of Burlington Investment,
including the Prepetition Lenders.
e. The Burlington Fabrics Trustee may take such actions as may be
necessary or appropriate to transfer the funds held in the Burlington
Fabrics Irrevocable Trust to the BII Distribution Trust pursuant to Section
IV.B.7.c and to liquidate and close out the Burlington Fabrics Irrevocable
Trust in accordance with the Burlington Fabrics Trust Agreement.
f. The Burlington Fabrics Trustee and the Distribution Trust
Representative may take such actions and enter into such agreements as may
be necessary or appropriate to implement the provisions of this Section
IV.B.7 and terminate the Burlington Fabrics Trust Agreement.
C. CORPORATE GOVERNANCE, DIRECTORS AND OFFICERS, EMPLOYMENT-RELATED AGREEMENTS
AND COMPENSATION PROGRAMS
1. CERTIFICATES OF INCORPORATION AND BY-LAWS OF REORGANIZED DEBTORS
The amended bylaws and amended certificates of incorporation or
similar constituent documents for each of the Reorganized Debtors will contain
such provisions as are necessary to satisfy the provisions of the Plan and, to
the extent necessary, to prohibit the issuance of nonvoting equity securities
(other than any warrants) as required by section 1123(a)(6) of the Bankruptcy
Code, subject to further amendment of the amended bylaws and the amended
certificates of incorporation or similar constituent documents after the
Effective Date as permitted by applicable law. Except as otherwise provided in
the Plan, the amended bylaws and amended certificates of
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incorporation or similar constituent documents will contain such indemnification
provisions applicable to the officers, directors, and employees of the
Reorganized Debtors and such other persons as the board of directors of the
Reorganized Debtors may, in their discretion, deem to be appropriate. The
amended bylaws and the amended certificate of incorporation for Reorganized
Burlington will be filed as part of the Plan Supplement.
2. DIRECTORS AND OFFICERS OF REORGANIZED DEBTORS
On the Effective Date, the existing Board of Directors of each of the
Debtors shall be deemed to have resigned. The initial Board of Directors for
each of the Reorganized Debtors shall be the individuals designated by the
Buyer, to be effective immediately after the Closing. The initial officers of
each of the Reorganized Debtors will be those officers that were the officers of
each of the Debtors immediately prior to the Closing. Each such director and
officer will serve from and after the Effective Date until his or her successor
is duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the terms of the certificates of
incorporation and by-laws or similar constituent documents of the applicable
Reorganized Debtor and applicable state law.
3. NEW EMPLOYMENT, RETIREMENT, INDEMNIFICATION AND OTHER RELATED
AGREEMENTS AND INCENTIVE COMPENSATION PROGRAMS
As of the Effective Date, the Reorganized Debtors will have authority
to: (a) maintain, amend or revise existing employment, retirement, welfare,
incentive, severance, indemnification and other agreements with their active
directors, officers and employees, subject to the terms and conditions of any
such agreement; and (b) enter into new employment, retirement, welfare,
incentive, severance, indemnification and other agreements for active and
retired employees. Exhibit IV.C.3(a) provides a non-exclusive list of the
employment agreements and employee pension and benefit plans that will remain in
or take effect on the Effective Date. Exhibit IV.C.3(b) provides a list of the
employment agreements and employee benefit plans that are to be terminated and
rejected on the Effective Date, which include the Debtors' existing Supplemental
Executive Retirement Plans and all individual employment agreements.
4. CORPORATE ACTION
The Restructuring Transactions; the transactions contemplated by the
Berkshire Agreement; the adoption of new or amended and restated certificates of
incorporation and by-laws or similar constituent documents for the Reorganized
Debtors; the designation of the initial directors and officers for the
Reorganized Debtors; the Distributions of cash pursuant to the Plan; the
issuance and distribution of New Common Stock and New Subsidiary Equity
Interests pursuant to the Plan and the Berkshire Agreement; the establishment of
the BII Distribution Trust; the adoption, execution, delivery and implementation
of all contracts, leases, instruments, releases and other agreements or
documents related to any of the foregoing; the adoption, execution and
implementation of employment, retirement and indemnification agreements,
incentive compensation programs, retirement income plans, welfare benefit plans
and other employee plans and related agreements, including the plans and
agreements described on Exhibit IV.C.3(a); and the other matters provided for
under the Plan involving the corporate structure of any Debtor or Reorganized
Debtor or corporate action to be taken by or required of any Debtor or
Reorganized Debtor will occur and be effective as of the date specified in the
documents effectuating the applicable transactions or the Effective Date, if no
such other date is specified in such other documents, and will be authorized and
approved in all respects and for all purposes without any requirement of further
action by stockholders or directors of any of the Debtors.
D. PRESERVATION OF RECOVERY ACTIONS; SETTLEMENT OF CLAIMS AND RELEASES
1. PRESERVATION OF RECOVERY ACTIONS
Except as provided in the Plan, the Confirmation Order, the Berkshire
Agreement or any contract, instrument, release or other agreement entered into
or delivered in connection with the Plan, in accordance with section 1123(b) of
the Bankruptcy Code, any Recovery Action that any Debtor or Estate may hold
against any entity
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will be transferred to and vest in the BII Distribution Trust and may be pursued
by the Distribution Trust Representative.
2. COMPREHENSIVE SETTLEMENT OF CLAIMS AND CONTROVERSIES
Pursuant to Bankruptcy Rule 9019 and in consideration for the
Distributions and other benefits provided under the Plan, the provisions of the
Plan, including the releases set forth in Section IV.D.3, will constitute a good
faith compromise and settlement of all claims or controversies relating to the
rights that a holder of a Claim or Interest may have with respect to any Allowed
Claim or Allowed Interest or any Distribution to be made pursuant to the Plan on
account of any Allowed Claim or Allowed Interest. The entry of the Confirmation
Order will constitute the Bankruptcy Court's approval, as of the Effective Date,
of the compromise or settlement of all such claims or controversies and the
Bankruptcy Court's finding that such compromise or settlement is in the best
interests of the Debtors, Reorganized Debtors, Estates and their respective
property and Claim and Interest holders and is fair, equitable and reasonable.
3. RELEASES
a. GENERAL RELEASES OF DEBTORS AND REORGANIZED DEBTORS
Except as otherwise expressly set forth in the Plan, on and after the
Effective Date, the Debtors and the Reorganized Debtors are released from all
Liabilities from the beginning of time.
b. GENERAL RELEASES BY DEBTORS AND REORGANIZED DEBTORS
Without limiting any other applicable provisions of or releases
contained in the Plan, as of the Effective Date, the Debtors and the Reorganized
Debtors, on behalf of themselves, the Estates and their respective successors,
assigns and any and all entities who may purport to claim by, through, for or
because of them, will forever release, waive and discharge all Liabilities that
they have, had or may have against any Released Party.
c. GENERAL RELEASES BY HOLDERS OF CLAIMS OR INTERESTS
Without limiting any other applicable provisions of or releases
contained in the Plan, as of the Effective Date, in consideration for the
obligations of the Debtors, Reorganized Debtors, Buyer, BII Distribution Trust
and Distribution Trust Representative under the Plan and the Berkshire Agreement
and the cash and other contracts, instruments, releases, agreements or documents
to be entered into or delivered in connection with the Plan and the Berkshire
Agreement, (i) each holder of a Claim or Interest that votes in favor of the
Plan and (ii) to the fullest extent permissible under applicable law, as such
law may be extended or interpreted subsequent to the Effective Date, each entity
that has held, holds or may hold a Claim or Interest or at any time was a
creditor, stockholder or other equity holder of any of the Debtors and that does
not vote on the Plan or votes against the Plan will be deemed to forever
release, waive and discharge all Liabilities in any way relating to a Debtor,
the Reorganization Cases, the Estates, the Plan, the Disclosure Statement, the
Berkshire Agreement, the Bidding Procedures or the Auction that such entity has,
had or may have against any Released Party (which release will be in addition to
the discharge of Claims and termination of Interests provided herein and under
the Confirmation Order and the Bankruptcy Code).
d. INJUNCTION RELATED TO RELEASES
As further provided in Section XI.B, the Confirmation Order will
permanently enjoin the commencement or prosecution by any entity, whether
directly, derivatively or otherwise, of any Liabilities released pursuant to the
Plan.
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E. CONTINUATION OR TERMINATION OF CERTAIN EMPLOYEE AND WORKERS' COMPENSATION
BENEFITS
1. EMPLOYEE BENEFITS
Except for those agreements and plans to be terminated as set forth on
Exhibit IV.C.3(b) and rejected pursuant to section 365 of the Bankruptcy Code
under Section V.C, all pension, 401(k), health care and other employee benefit
plans, policies, and programs of the Debtors applicable to their directors,
officers or employees, including those identified on Exhibit IV.C.3(a) and as
"Benefit Plans" under the Berkshire Agreement, are treated as Executory
Contracts under the Plan and shall be assumed, as modified as set forth on
Exhibit IV.C.3(a), by the applicable Reorganized Debtor pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code. The Reorganized Debtors also
intend to assume the KERP and satisfy the KERP Payments and to continue
sponsoring the Pension Plan from and after the Effective Date, as modified as
set forth in Section 4.06 of the Berkshire Agreement. The PBGC and the Pension
Plan retain the right to seek available remedies under applicable law against
the Reorganized Debtors arising from (a) the failure to comply with the minimum
funding standards of the Code and ERISA; (b) the failure to pay required
premiums to the PBGC; (c) any unfunded benefit liabilities in the event of the
termination of the Pension Plan; or (d) any other violation of ERISA.
On the Effective Date, the employee agreements and benefit plans set
forth on Exhibit IV.C.3(b), which include the Debtors' Supplemental Executive
Retirement Plans and all individual employment agreements, will be terminated
and rejected by the applicable Debtor pursuant to section 365 of the Bankruptcy
Code in accordance with Section V.C and neither the Debtors, Reorganized
Debtors, Estates, BII Distribution Trust nor Distribution Trust Representative
will have any further obligations under such agreements or plans.
2. WORKERS' COMPENSATION BENEFITS
From and after the Effective Date, the Reorganized Debtors, in their
sole discretion, may continue to pay valid Claims arising before the Petition
Date under the Debtors' self-insured workers' compensation programs that would
not otherwise be paid by another entity or a state agency under a surety bond,
letter of credit or other obligation.
F. CANCELLATION AND SURRENDER OF INSTRUMENTS, SECURITIES AND OTHER
DOCUMENTATION
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 concurrently with the applicable Distributions made pursuant to Article
III, the Prepetition Credit Facility, the Prepetition Indenture and the Old
Senior Notes will be cancelled and of no further force and effect, without any
further action on the part of any Debtor or Reorganized Debtor. The Old Common
Stock, the Old Nonvoting Common Stock, any Option (as defined in the Berkshire
Agreement) relating to the Old Common Stock or Old Nonvoting Common Stock, the
Old Subsidiary Equity Interests and any Option relating to the Old Subsidiary
Equity Interests, and any equity interest or Option related thereto issued by a
Debtor on or after the Petition Date but before the Effective Date, and any
related shareholder, investor rights, proxy or voting trust agreements or other
arrangements in favor of any person with respect to the voting of or right to
participate in dividends or other earnings of the Debtors and any other
arrangements to make any payment in respect of any equity interest of any Debtor
shall be deemed cancelled or terminated, as applicable, and of no further force
and effect on the Effective Date. The holders of or parties to such cancelled
instruments, securities and other documentation will have no rights arising from
or relating to such instruments, securities and other documentation or the
cancellation thereof, except the rights provided pursuant to the Plan; provided,
however, that no Distribution under the Plan will be made to or on behalf of any
holder of an Allowed Claim evidenced by such cancelled instruments or securities
unless and until such instruments or securities are received by the applicable
Disbursing Agent to the extent required in Section VI.K.
G. RELEASE OF LIENS
Except as otherwise provided in the Plan or in any contract,
instrument, release or other agreement or document entered into or delivered in
connection with the Plan, on the Effective Date, all mortgages, deeds of trust,
liens or other security interests against the property of any Estate will be
fully released and discharged, and all
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of the right, title and interest of any holder of such mortgages, deeds of
trust, liens or other security interests, including any rights to any collateral
thereunder, will revert to the applicable Reorganized Debtor and its successors
and assigns or, with respect to the Distribution Trust Assets, to the BII
Distribution Trust.
H. EFFECTUATING DOCUMENTS; FURTHER TRANSACTIONS; EXEMPTION FROM CERTAIN
TRANSFER TAXES
The Chairman of the Board, Chief Executive Officer, President,
Executive Vice President, Chief Financial Officer, Chief Operating Officer,
Senior Vice President or any Vice President of each Debtor or Reorganized Debtor
or the Distribution Trust Representative will be authorized to execute, deliver,
file or record such contracts, instruments, releases and other agreements or
documents and take such actions as may be necessary or appropriate to effectuate
and implement the provisions of the Plan. The Secretary or any Assistant
Secretary of each Debtor or Reorganized Debtor will be authorized to certify or
attest to any of the foregoing actions. Pursuant to section 1146(c) of the
Bankruptcy Code, the following will not be subject to any stamp tax, real estate
transfer tax, sales and use tax or similar tax: (1) the issuance, transfer or
exchange of the New Common Stock and New Subsidiary Equity Interests; (2) the
creation of any mortgage, deed of trust, lien or other security interest; (3)
the making or assignment of any lease or sublease; (4) any Restructuring
Transaction; or (5) the making or delivery of any deed or other instrument of
transfer under, in furtherance of or in connection with the Plan, including any
merger agreements; agreements of consolidation, restructuring, disposition,
liquidation or dissolution; deeds; bills of sale; or assignments executed in
connection with any Restructuring Transaction pursuant to the Plan.
ARTICLE V.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED OR ASSUMED AND
ASSIGNED
1. ASSUMPTION AND ASSIGNMENT GENERALLY
Except as otherwise provided in the Plan, the Berkshire Agreement or
any contract, instrument, release or other agreement or document entered into in
connection with the Plan, on the Effective Date, pursuant to section 365 of the
Bankruptcy Code, the applicable Debtor or Debtors will assume or assume and
assign, as indicated, each of the Executory Contracts and Unexpired Leases
listed on Exhibit V.A.1; provided, however, that the Debtors and Reorganized
Debtors reserve the right, at any time prior to 15 days after the Effective
Date, to amend Exhibit V.A.1 to: (a) delete any Executory Contract or Unexpired
Lease listed therein, thus providing for its rejection pursuant to Section V.C
or (b) add any Executory Contract or Unexpired Lease thereto, thus providing for
its assumption or assumption and assignment pursuant to this Section V.A.1. The
Debtors or Reorganized Debtors, as applicable, will provide notice of any
amendments to Exhibit V.A.1 to the parties to the Executory Contracts or
Unexpired Leases affected thereby and to the parties on the then-applicable
service list in the Reorganization Cases (including counsel to the Creditors'
Committee). Each contract and lease listed on Exhibit V.A.1 will be assumed only
to the extent that any such contract or lease constitutes an Executory Contract
or Unexpired Lease. Listing a contract or lease on Exhibit V.A.1 will not
constitute an admission by a Debtor, Reorganized Debtor or Distribution Trust
Representative that such contract or lease (including any related agreements as
described in Section I.A.101 or V.A.2) is an Executory Contract or Unexpired
Lease or that a Debtor, Reorganized Debtor, BII Distribution Trust or
Distribution Trust Representative has any liability thereunder.
2. ASSUMPTIONS AND ASSIGNMENTS OF REAL PROPERTY EXECUTORY CONTRACTS AND
UNEXPIRED LEASES
Each Real Property Executory Contract and Unexpired Lease listed on
Exhibit V.A.1 will include any modifications, amendments, supplements,
restatements or other agreements made directly or indirectly by any agreement,
instrument or other document that in any manner affects such contract or lease,
irrespective of whether such agreement, instrument or other document is listed
on Exhibit V.A.1, unless any such modification, amendment, supplement,
restatement or other agreement is rejected pursuant to Section V.C and is listed
on Exhibit V.C.
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3. ASSIGNMENTS RELATED TO THE RESTRUCTURING TRANSACTIONS
As of the effective time of any applicable Restructuring Transaction,
any Executory Contract or Unexpired Lease (including any related agreements as
described in Sections I.A.101 and V.A.2) to be held by Reorganized Burlington,
any Reorganized Debtor or another surviving, resulting or acquiring corporation
in an applicable Restructuring Transaction, will be deemed assigned to the
applicable entity, pursuant to section 365 of the Bankruptcy Code.
4. APPROVAL OF ASSUMPTIONS AND ASSIGNMENTS
Subject to the rights of the Debtors and Reorganized Debtors to amend
Exhibit V.A.1, the Confirmation Order will constitute an order of the Bankruptcy
Court approving the assumptions and the assumptions and assignments described in
Section V.A, pursuant to section 365 of the Bankruptcy Code, as of the Effective
Date. An order of the Bankruptcy Court entered on or prior to the Confirmation
Date will specify the procedures for providing to each party whose Executory
Contract or Unexpired Lease is being assumed or assumed and assigned pursuant to
the Plan notice of: (a) the contract or lease being assumed or assumed and
assigned; (b) the Cure Amount Claim, if any, that the applicable Debtor believes
it would be obligated to pay in connection with such assumption; and (c) the
procedures for such party to object to the assumption or assumption and
assignment of the applicable contract or lease or the amount of the proposed
Cure Amount Claim. The Debtors and Reorganized Debtors reserve the right to
delete an Executory Contract or Unexpired Lease from Exhibit V.A.1, thus
providing for its rejection pursuant to Section V.C, at any time in response to
an objection to the assumption or the assumption and assignment of the
applicable contract or lease or the amount of the proposed Cure Amount Claim.
B. PAYMENTS RELATED TO THE ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES
To the extent that such Claims constitute monetary defaults, the Cure
Amount Claims associated with each Executory Contract and Unexpired Lease to be
assumed pursuant to the Plan will be satisfied, pursuant to section 365(b)(1) of
the Bankruptcy Code, at the option of the Debtor or Reorganized Debtor assuming
such contract or lease or the assignee of such Debtor, if any: (1) by payment of
the Cure Amount Claim in cash on the Effective Date or (2) on such other terms
as are agreed to by the parties to such Executory Contract or Unexpired Lease.
If there is a dispute regarding: (1) the amount of any Cure Amount Claim, (2)
the ability of the applicable 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 (3) any other
matter pertaining to assumption or assumption and assignment of such contract or
lease, the payment of any Cure Amount Claim required by section 365(b)(1) of the
Bankruptcy Code will be made following the entry of a Final Order resolving the
dispute and approving the assumption. For assumptions of Executory Contracts or
Unexpired Leases between Debtors, the Reorganized Debtor assuming such contract
may cure any monetary default (1) by treating such amount as either a direct or
indirect contribution to capital or distribution (as appropriate) or (2) through
an intercompany account balance in lieu of payment in cash. All Cure Amount
Claims shall be assumed by the Reorganized Debtors and satisfied in full as set
forth in the Plan or as otherwise agreed to by the holders of such Claims and
the Reorganized Debtors. The BII Distribution Trust shall have no liability for
the Cure Amount Claims.
C. EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
On the Effective Date, except for an Executory Contract or Unexpired
Lease that was previously assumed, assumed and assigned or rejected by an order
of the Bankruptcy Court or that is assumed pursuant to Section V.A (including
any related agreements assumed pursuant to Sections I.A.101 and V.A.2), each
Executory Contract and Unexpired Lease entered into by a Debtor prior to the
Petition Date that has not previously expired or terminated pursuant to its own
terms will be rejected pursuant to section 365 of the Bankruptcy Code. The
Executory Contracts and Unexpired Leases to be rejected will include the
Executory Contracts and Unexpired Leases listed on Exhibit V.C. Each contract
and lease listed on Exhibit V.C will be rejected only to the extent that any
such contract or lease constitutes an Executory Contract or Unexpired Lease.
Listing a contract or lease on Exhibit V.C will not constitute an admission by a
Debtor, Reorganized Debtor or Distribution Trust Representative that such
contract or lease (including related agreements as described in Section I.A.101)
is an Executory Contract or Unexpired Lease or that a Debtor, Reorganized
Debtor, BII Distribution Trust or Distribution Trust Representative has any
liability thereunder. Any Executory Contract and Unexpired Lease not listed on
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Exhibit V.A.1 and not previously assumed, assumed and assigned or rejected by an
order of the Bankruptcy Court will be deemed rejected irrespective of whether
such contract is listed on Exhibit V.C. The Confirmation Order will constitute
an order of the Bankruptcy Court approving such rejections, pursuant to section
365 of the Bankruptcy Code, as of the Effective Date. The BII Distribution Trust
will pay any Claim arising from rejection of any contract.
D. BAR DATE FOR REJECTION DAMAGES
Notwithstanding anything in the Bar Date Order to the contrary, if the
rejection of an Executory Contract or Unexpired Lease pursuant to Section V.C
gives rise to a Claim (including any Claims arising from those indemnification
obligations described in Section V.E) by the other party or parties to such
contract or lease, such Claim will be forever barred and will not be enforceable
against the Debtors, Reorganized Debtors, Estates, BII Distribution Trust,
Distribution Trust Representative, their respective successors or their
respective properties unless a proof of Claim is Filed and served on the
Distribution Trust Representative, pursuant to the procedures specified in the
Confirmation Order and the notice of the entry of the Confirmation Order or
another order of the Bankruptcy Court, no later than 30 days after the Effective
Date.
E. SPECIAL EXECUTORY CONTRACT AND UNEXPIRED LEASE ISSUES
1. OBLIGATIONS TO INDEMNIFY DIRECTORS, OFFICERS AND EMPLOYEES
a. The current and former directors and officers of the Debtors and
the Reorganized Debtors will be indemnified by the Buyer and Reorganized
Burlington to the extent provided for and on the terms set forth in Section
6.03 of the Berkshire Agreement.
b. The obligations of each Debtor to indemnify any person who, at
any time prior to the Effective Date, served as a director, officer or
employee of such Debtor, which indemnity obligation arose by reason of such
person's service in any such capacity or as a director, officer or employee
of another corporation, partnership or other legal entity, whether provided
in the applicable certificates of incorporation, by-laws or similar
constituent documents, by statutory law or by written agreement, policies
or procedures of or with such Debtor, will terminate and be discharged
pursuant to sections 502(e) and 1141 of the Bankruptcy Code or otherwise,
as of the Effective Date; provided, however, that, to the extent that such
indemnification obligations no longer give rise to contingent Claims that
can be disallowed pursuant to section 502(e) of the Bankruptcy Code, such
indemnification obligations will be deemed and treated as executory
contracts that are rejected by the applicable Debtor pursuant to the Plan
and section 365 of the Bankruptcy Code, as of the Effective Date, and any
Claims arising from such indemnification obligations (including any
rejection damage claims) will be subject to the bar date provisions of the
Plan.
2. REINSTATEMENT OF ALLOWED SECONDARY LIABILITY CLAIMS ARISING FROM OR
RELATED TO EXECUTORY CONTRACTS OR UNEXPIRED LEASES ASSUMED BY THE
DEBTORS
On the Effective Date, in accordance with Section III.D.1, any Allowed
Secondary Liability Claim arising from or related to any Debtor's joint or
several liability for the obligations under or with respect to (a) any Executory
Contract or Unexpired Lease that is being assumed or deemed assumed pursuant to
section 365 of the Bankruptcy Code by another Debtor or (b) any Executory
Contract or Unexpired Lease that is being assumed by and assigned to another
Debtor will be Reinstated. Accordingly, such Allowed Secondary Liability Claims
will survive and be unaffected by entry of the Confirmation Order.
F. CONTRACTS AND LEASES ENTERED INTO AFTER THE PETITION DATE
Contracts and leases entered into after the Petition Date by any
Debtor, including any Executory Contracts and Unexpired Leases assumed by such
Debtor, will be performed by the Debtor or Reorganized Debtor liable thereunder,
in accordance with the terms and conditions of such contracts and leases, in the
ordinary course of its business. Accordingly, such contracts and leases and
other obligations (including any assumed Executory Contracts and Unexpired
Leases) will survive and remain unaffected by entry of the Confirmation Order.
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ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. DISTRIBUTIONS FOR CLAIMS ALLOWED AS OF THE EFFECTIVE DATE
Except as otherwise provided in this Article VI, Distributions of cash
to be made on the Effective Date to holders of Claims that are allowed as of the
Effective Date will be deemed made on the Effective Date if made on the
Effective Date or as promptly thereafter as practicable, but in any event no
later than: (a) 60 days after the Effective Date or (b) such later date when the
applicable conditions of Section V.B (regarding cure payments for Executory
Contracts and Unexpired Leases being assumed), Section VI.G.2 (regarding
undeliverable Distributions) or Section VI.K (regarding surrender of cancelled
instruments and securities) are satisfied. Distributions on account of Claims
that become Allowed Claims after the Effective Date will be made pursuant to
Sections VI.J and VII.C.
B. METHOD OF DISTRIBUTIONS TO HOLDERS OF CLAIMS ASSUMED BY REORGANIZED DEBTORS
The Reorganized Debtors shall make all Distributions to holders of
those Administrative Claims identified in Sections III.A.1.c and III.A.1.d and
Priority Tax Claims.
C. METHOD OF DISTRIBUTIONS TO HOLDERS OF OTHER CLAIMS
Except as provided in Section VI.B, the Distribution Trust
Representative, or such Third Party Disbursing Agents as designated by the Plan
or the Distribution Trust Representative, shall make all Distributions required
under the Plan. Each Disbursing Agent will serve without bond, and any
Disbursing Agent may employ or contract with other entities to assist in or make
the Distributions required by the Plan. With respect to Class 2 Claims, Chase
Bank, in its capacity as administrative agent for the Prepetition Lenders, shall
act as Disbursing Agent. With respect to Old Senior Note Claims, the Indenture
Trustee shall act as Disbursing Agent.
D. COMPENSATION AND REIMBURSEMENT FOR SERVICES RELATED TO DISTRIBUTIONS
Each Third Party Disbursing Agent providing services related to
Distributions pursuant to the Plan (other than Chase Bank and the Indenture
Trustee) will receive from the BII Distribution Trust, without further
Bankruptcy Court approval, reasonable compensation for such services and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services. These payments will be made on terms agreed to with the
Distribution Trust Representative.
E. PROVISIONS GOVERNING THE UNSECURED CLAIMS RESERVE
1. FUNDING OF UNSECURED CLAIMS RESERVE
On the Effective Date, the Unsecured Claims Reserve will be
established for the benefit of holders of Allowed Claims in Class 4. The
Distribution Trust Agreement will fund the Unsecured Claims Reserve with the
Remaining Proceeds. The Unsecured Claims Reserve will remain in full force and
effect for five years from the Effective Date.
2. PROPERTY HELD IN UNSECURED CLAIMS RESERVE
a. INVESTMENT
Cash held in the Unsecured Claims Reserve (i) will be deposited in a
segregated bank account in the name of the applicable Disbursing Agent and held
in trust pending Distribution by the Disbursing Agent for the benefit of holders
of Class 4 Claims and (ii) will be accounted for separately. The Disbursing
Agent will invest the cash held in the Unsecured Claims Reserve in a manner
consistent with the BII Distribution Trust's investment and deposit guidelines.
The Disbursing Agent also will place in the Unsecured Claims Reserve the Cash
Investment Yield from such investment of cash.
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b. RECOURSE
Each holder of an Allowed Claim (or a Disputed Claim that ultimately
becomes an Allowed Claim) in Class 4 will have recourse only to the
undistributed cash held in the Unsecured Claims Reserve for satisfaction of the
Distributions to which such holders of Allowed Class 4 Claims are entitled under
the Plan, and not to any Debtor, Reorganized Debtor or Estate; their respective
property; or any assets previously distributed on account of any Allowed Claim.
F. ESTABLISHMENT OF OTHER CLAIMS RESERVES
The Distribution Trust Representative may establish any other cash
reserves that it deems necessary or advisable to ensure that sufficient funds
are available to make Distributions to holders of Allowed Administrative Claims
and Allowed Claims in Classes other than Class 4 or to otherwise satisfy the BII
Distribution Trust's and the Distribution Trust Representative's obligations
under the Plan, including the Distribution Trust Expenses.
G. DELIVERY OF DISTRIBUTIONS AND UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS
1. DELIVERY OF DISTRIBUTIONS
a. GENERALLY
Except as provided in Section VI.G.1.b, Distributions to holders of
Allowed Claims will be made by a Disbursing Agent: (i) at the addresses set
forth on the respective proofs of Claim Filed by holders of such Claims; (ii) at
the addresses set forth in any written certification of address change delivered
to the Disbursing Agent (including pursuant to a letter of transmittal delivered
to a Disbursing Agent) after the date of Filing of any related proof of Claim;
or (iii) at the addresses reflected in the applicable Debtor's Schedules if no
proof of Claim has been Filed and the Disbursing Agent has not received a
written notice of a change of address.
b. SPECIAL PROVISIONS FOR DISTRIBUTIONS TO HOLDERS OF OLD SENIOR
NOTE CLAIMS
Subject to the requirements of Section VI.K, Distributions to holders
of Allowed Old Senior Note Claims will be made by the applicable Disbursing
Agent to the record holders of the Old Senior Notes as of the Distribution
Record Date, as identified on a record holder register prepared by the
applicable Indenture Trustee. The record holder register (i) will provide the
name, address and holdings of each respective registered holder of Old Senior
Notes, as of the Distribution Record Date and (ii) must be consistent with the
applicable Indenture Trustee's Allowed proof of Claim. Each entry on the
applicable record holder register will be treated as an Allowed Class 4 Claim
for purposes of Distributions made pursuant to this Article VI.
2. UNDELIVERABLE DISTRIBUTIONS HELD BY DISBURSING AGENTS
a. HOLDING AND INVESTMENT OF UNDELIVERABLE DISTRIBUTIONS
If any Distribution to a holder of an Allowed Claim is returned to a
Disbursing Agent as undeliverable, no further Distributions will be made to such
holder unless and until the applicable Disbursing Agent is notified by written
certification of such holder's then-current address. Subject to Section VI.G.2.c
(regarding the failure to claim undeliverable Distributions), undeliverable
Distributions will remain in the possession of the applicable Disbursing Agent
until such time as a Distribution becomes deliverable. Undeliverable cash will
be held in segregated bank accounts in the name of the applicable Disbursing
Agent for the benefit of the potential claimants of such funds. Any Disbursing
Agent holding undeliverable cash will invest such cash in a manner consistent
with the BII Distribution Trust's investment and deposit guidelines.
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b. AFTER DISTRIBUTIONS BECOME DELIVERABLE
On each Quarterly Distribution Date, the applicable Disbursing Agents
will make all Distributions that become deliverable to holders of Allowed Claims
during the preceding calendar quarter. Each such Distribution will include, to
the extent applicable, a Pro Rata share of the Cash Investment Yield from the
investment of any undeliverable cash from the date that such Distribution would
have first been due had it then been deliverable to the date that such
Distribution becomes deliverable.
c. FAILURE TO CLAIM UNDELIVERABLE DISTRIBUTIONS
Any holder of an Allowed Claim that does not assert a claim pursuant
to the Plan for an undeliverable Distribution to be made by a Disbursing Agent
within two years after the later of (i) the Effective Date and (ii) the last
date on which a Distribution was deliverable to such holder will have its claim
for such undeliverable Distribution discharged and will be forever barred from
asserting any such claim against the Debtors, Reorganized Debtors, Estates, BII
Distribution Trust, Distribution Trust Representative or Distribution Trust
Assets. In such cases, unclaimed cash will become property of the BII
Distribution Trust, free of any restrictions thereon, and any such cash held by
a Third Party Disbursing Agent will be returned to the BII Distribution Trust.
Nothing contained in the Plan will require any Debtor, Reorganized Debtor or
Disbursing Agent or the BII Distribution Trust to attempt to locate any holder
of an Allowed Claim.
H. DISTRIBUTION RECORD DATE
1. A Disbursing Agent will have no obligation to recognize the transfer
of, or the sale of any participation in, any Allowed Claim that occurs after the
close of business on the Distribution Record Date and will be entitled for all
purposes under the Plan to recognize and make Distributions only to those
holders of Allowed Claims that are holders of such Claims, or participants
therein, as of the close of business on the Distribution Record Date.
2. As of the close of business on the Distribution Record Date, the
transfer registers for the Old Senior Notes, as maintained by the Debtors or the
Indenture Trustee, will be closed. The applicable Disbursing Agent will have no
obligation to recognize the transfer or sale of any Old Senior Note Claim that
occurs after the close of business on the Distribution Record Date and will be
entitled for all purposes herein to recognize and make Distributions only to
those holders of Old Senior Note Claims who are holders of such Claims as of the
close of business on the Distribution Record Date.
3. Except as otherwise provided in a Final Order of the Bankruptcy Court,
the transferees of Claims in Class 4 that are transferred pursuant to Bankruptcy
Rule 3001 on or prior to the Distribution Record Date will be treated as the
holders of such Claims for all purposes, notwithstanding that any period
provided by Bankruptcy Rule 3001 for objecting to such transfer has not expired
by the Distribution Record Date.
I. MEANS OF CASH PAYMENTS
Except as otherwise specified in the Plan, cash payments made pursuant
to the Plan will be in U.S. currency by checks drawn on a domestic bank selected
by the applicable Disbursing Agent or, at the option of the applicable
Disbursing Agent, by wire transfer from a domestic bank; provided, however, that
cash payments to foreign holders of Allowed Trade Claims may be made, at the
option of the applicable Disbursing Agent, in such funds and by such means as
are necessary or customary in a particular foreign jurisdiction.
J. TIMING AND CALCULATION OF AMOUNTS TO BE DISTRIBUTED
1. ALLOWED CLAIMS
a. On the Effective Date, each holder of an Allowed Claim in a Class
other than Class 4 will receive the full amount of the Distributions that the
Plan provides for Allowed Claims in the applicable Class. On each Quarterly
Distribution Date, Distributions also will be made, pursuant to Section VII.C,
to holders of Disputed
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Claims in any such Class that were allowed during the preceding calendar
quarter. Such quarterly Distributions also will be in the full amount that the
Plan provides for Allowed Claims in the applicable Class.
b. The amount of Distributions to be made on the Effective Date to
holders of Allowed Claims in Class 4 on account of such Claims will be made from
the Unsecured Claims Reserve and will be calculated as if each Disputed Claim in
such Class 4 were an Allowed Claim in its Face Amount. On each Quarterly
Distribution Date, Distributions also will be made, pursuant to Section VII.C,
to holders of Disputed Claims in Class 4 that were allowed during the preceding
calendar quarter. Such quarterly Distributions also will be calculated pursuant
to the provisions set forth in Section VII.C.
c. On the fourth Quarterly Distribution Date and annually
thereafter, each holder of a Claim previously allowed in Class 4 will receive an
additional Distribution from the Unsecured Claims Reserve on account of such
Claim in an amount equal to: (a) the amount of cash that such holder would have
been entitled to receive pursuant to Section VII.C as if such Claim had become
an Allowed Claim on the applicable Quarterly Distribution Date, minus (b) the
aggregate amount of cash previously distributed on account of such Claim. Each
such additional Distribution also will include, on the basis of the amount then
being distributed, a Pro Rata share of the related Cash Investment Yield from
the investment of any interest payments or other Distributions in the Unsecured
Claims Reserve, from the date such cash was deposited into the Unsecured Claims
Reserve to the date that such Distribution is made.
2. DE MINIMIS DISTRIBUTIONS
No Disbursing Agent will distribute cash to the holder of an Allowed
Claim in an impaired Class if the amount of cash to be distributed on account of
such Claim is less than $25. Any holder of such an Allowed Claim on account of
which the amount of cash to be distributed is less than $25 will have its claim
for such Distribution discharged and will be forever barred from asserting any
such claim against the Debtors, Reorganized Debtors, Estates, BII Distribution
Trust, Distribution Trust Representative or their respective property. Any cash
not distributed pursuant to this Section VI.J with respect to Claims in a Class
other than Class 4 will be the property of the BII Distribution Trust, free of
any restrictions thereon, and any such cash held by a Third Party Disbursing
Agent will be returned to the BII Distribution Trust. Any cash not distributed
pursuant to Section VI.J with respect to Allowed Claims in Class 4 will be
retained in the Unsecured Claims Reserve for redistribution Pro Rata to holders
of Allowed Claims in Class 4, pursuant to Section VI.J. For purposes of this
redistribution, each Allowed Claim in Class 4 for which Distributions are less
than $25 will have its claim for such distribution discharged and will be
forever barred from asserting any such claim against the Unsecured Claims
Reserve or otherwise.
3. COMPLIANCE WITH TAX REQUIREMENTS
a. In connection with the Plan, to the extent applicable, each
Disbursing Agent will comply with all Tax withholding and reporting requirements
imposed on it by any governmental unit, and all Distributions pursuant to the
Plan will be subject to such withholding and reporting requirements. Each
Disbursing Agent will be authorized to take any actions that may be necessary or
appropriate to comply with such withholding and reporting requirements including
but not limited to requiring recipients to fund the payment of such withholding
as a condition to delivery.
b. Notwithstanding any other provision of the Plan, each person or
entity receiving a Distribution of cash pursuant to the Plan will have sole and
exclusive responsibility for the satisfaction and payment of any Tax obligations
imposed on it by any governmental unit on account of such distribution,
including income, withholding and other Tax obligations.
K. SURRENDER OF CANCELLED INSTRUMENTS OR SECURITIES
As a condition precedent to receiving any Distribution pursuant to the
Plan on account of an Allowed Claim evidenced by the notes, instruments,
securities or other documentation cancelled pursuant to Section IV.F, the holder
of such Claim must tender, the applicable notes, instruments, securities or
other documentation evidencing such Claim to the applicable Disbursing Agent,
together with any letter of transmittal
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required by such Disbursing Agent. Pending such surrender, any Distributions
pursuant to the Plan on account of any such Claim will be treated as an
undeliverable Distribution pursuant to Section VI.G.2.
1. TENDER OF OLD SENIOR NOTES
Except as provided in Section VI.K.2 for lost, stolen, mutilated or
destroyed Old Senior Notes, each holder of an Allowed Old Senior Note Claim must
tender the applicable note to the applicable Disbursing Agent in accordance with
a letter of transmittal to be provided to such holders by the Disbursing Agent
as promptly as practicable following the Effective Date. The letter of
transmittal will include, among other provisions, customary provisions with
respect to the authority of the holder of the applicable Old Senior Notes to act
and the authenticity of any signatures required thereon. All surrendered Old
Senior Notes will be marked as cancelled and delivered to the appropriate
Reorganized Debtor.
2. LOST, STOLEN, MUTILATED OR DESTROYED OLD SENIOR NOTES
Any holder of an Allowed Old Senior Note Claim with respect to which
the underlying Old Senior Notes have been lost, stolen, mutilated or destroyed
must, in lieu of surrendering such note, deliver to the applicable Disbursing
Agent: (a) evidence satisfactory to the Disbursing Agent of the loss, theft,
mutilation or destruction and (b) such security or indemnity as may be required
by the Disbursing Agent to hold the Disbursing Agent and Reorganized Debtors, as
applicable, harmless from any damages, liabilities or costs incurred in treating
such individual as a holder of an Old Senior Note. Upon compliance with the
foregoing procedures by a holder of an Allowed Old Senior Note Claim, such
holder will, for all purposes under the Plan, be deemed to have surrendered the
applicable note.
3. FAILURE TO SURRENDER OLD SENIOR NOTES
Any holder of an Allowed Old Senior Note Claim that fails to surrender
or be deemed to have surrendered the applicable note within two years after the
Effective Date will have its right to Distributions pursuant to the Plan on
account of such Old Senior Note Claim discharged and will be forever barred from
asserting any such Claim against the Debtors, Reorganized Debtors, Estates, BII
Distribution Trust, Distribution Trust Representative or their respective
property. In such case, any cash held for Distribution on account of such Old
Senior Note Claim will be treated pursuant to the provisions set forth in
Section VI.G.2.c.
ARTICLE VII.
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. PROSECUTION OF OBJECTIONS TO CLAIMS
1. OBJECTIONS TO CLAIMS
All objections to Claims must be Filed and served on the holders of
such Claims by the Claims Objection Bar Date, and, if Filed prior to the
Effective Date, such objections will be served on the parties on the
then-applicable service list in the Reorganization Cases. If an objection has
not been Filed to a proof of Claim or a scheduled Claim by the Claims Objection
Bar Date, 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. An
objection is deemed to have been timely Filed as to all Tort Claims, thus making
each such Claim a Disputed Claim as of the Claims Objection Bar Date. Each such
Tort Claim will remain a Disputed Claim until it becomes an Allowed Claim in
accordance with Section I.A.5.
2. AUTHORITY TO PROSECUTE OBJECTIONS
After the Confirmation Date, only the Debtors or the BII Distribution
Trust will have the authority to File, settle, compromise, withdraw or litigate
to judgment objections to Claims, including pursuant to any
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alternative dispute resolution or similar procedures approved by the Bankruptcy
Court. After the Effective Date, only the BII Distribution Trust will have such
authority and may settle or compromise any Disputed Claim, in accordance with
the BII Distribution Trust Agreement, without approval of the Bankruptcy Court.
Notwithstanding the foregoing, after the Effective Date, the Reorganized Debtors
may File, settle, compromise, withdraw or litigate to judgment objections to any
Claims for which they have assumed liability under the Plan and the Berkshire
Agreement.
B. TREATMENT OF DISPUTED CLAIMS
Notwithstanding any other provisions of the Plan, no payments or
Distributions will be made on account of a Disputed Claim until such Claim
becomes an Allowed Claim. In lieu of Distributions under the Plan to holders of
Disputed Claims in Class 4, the Unsecured Claims Reserve will be established on
the Effective Date to hold property for the benefit of these Claim holders, as
well as holders of Allowed Claims in Class 4. The BII Distribution Trust will
fund the Unsecured Claims Reserve with cash, in accordance with the BII
Distribution Trust Agreement, as described in Section VI.E.1.
C. DISTRIBUTIONS ON ACCOUNT OF DISPUTED CLAIMS ONCE THEY ARE ALLOWED
On each Quarterly Distribution Date, the applicable Disbursing Agent
will make all Distributions on account of any Disputed Claim that has become an
Allowed Claim during the preceding calendar quarter. Such Distributions will be
made pursuant to the provisions of the Plan governing the applicable Class,
including the incremental Distribution provisions set forth in Section VI.J.1.
ARTICLE VIII.
SUBSTANTIVE CONSOLIDATION OF THE DEBTORS
A. SUBSTANTIVE CONSOLIDATION
Pursuant to the Confirmation Order, the Bankruptcy Court shall approve
the substantive consolidation of the Debtors solely for the purpose of
implementing the Plan, including for purposes of voting, Confirmation and
Distributions to be made under the Plan. Pursuant to such order: (A) all assets
and liabilities of the Debtors will be deemed merged; (B) all guarantees by one
Debtor of the obligations of any other Debtor will be deemed eliminated so that
any Claim against any Debtor and any guarantee thereof executed by any other
Debtor and any joint or several liability of any of the Debtors will be deemed
to be one obligation of the consolidated Debtors; and (C) each and every Claim
Filed or to be Filed in the Reorganization Case of any of the Debtors will be
deemed Filed against the consolidated Debtors and will be deemed one Claim
against and a single obligation of the consolidated Debtors. Such substantive
consolidation (other than for the purpose of implementing the Plan) will not
affect (A) the legal and corporate structures of the Reorganized Debtors,
subject to the right of the Debtors or Reorganized Debtors to affect
restructurings as provided in Section IV.B; (B) pre- and post-Effective Date
guarantees that are required to be maintained (1) in connection with contracts
or leases that were entered into during the Reorganization Cases or Executory
Contracts and Unexpired Leases that have been or will be assumed or (2) pursuant
to the Plan; and (C) the revesting of assets in the separate Reorganized Debtors
pursuant to Section IV.A.
B. ORDER GRANTING SUBSTANTIVE CONSOLIDATION
This Plan shall serve as a motion seeking entry of an order
substantively consolidating the Debtors, as described and to the limited extent
set forth in Section VIII.A above. Unless an objection to such substantive
consolidation is made in writing by any creditor affected by the Plan, Filed
with the Bankruptcy Court and served on the parties listed in Section XIII.K on
or before five days before the Voting Deadline, or such other date as may be
fixed by the Bankruptcy Court, the substantive consolidation order (which may be
the Confirmation Order) may be entered by the Bankruptcy Court. In the event any
such objections are timely Filed, a hearing with respect thereto shall occur at
the Confirmation Hearing. Notwithstanding this provision, nothing herein shall
affect
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the obligation of each and every Debtor to pay quarterly fees to the Office of
the United States Trustee in accordance with 28 U.S.C. Section 1930.
ARTICLE IX.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. CONDITIONS TO CONFIRMATION
The Bankruptcy Court will not enter the Confirmation Order unless and
until the following conditions have been satisfied or duly waived pursuant to
Section IX.C:
1. The Plan and Confirmation Order will be reasonably acceptable in form
and substance to the Debtors and the Buyer and will include an approval of the
substantive consolidation of the Debtors as contemplated by Article VIII.
2. The Plan shall not have been materially amended, altered or modified
from the Plan as Filed on February 11, 2003, unless such material amendment,
alteration or modification has been made in accordance with Section XIII.C.
3. All Exhibits to the Plan are in form and substance reasonably
satisfactory: (a) to the Debtors; and (b) to the extent such Exhibits affect the
Reorganized Debtors, the Buyer or the Berkshire Agreement, to the Buyer.
B. CONDITIONS TO THE EFFECTIVE DATE
The Effective Date will not occur and the Plan will not be consummated
unless and until each of the following conditions have been satisfied or duly
waived pursuant to Section IX.C:
1. The Bankruptcy Court shall have entered the Confirmation Order.
2. The Bankruptcy Court shall have entered an order (contemplated to be
part of the Confirmation Order) approving and authorizing the Debtors and the
Reorganized Debtors to take all actions necessary or appropriate to implement
the Plan, including completion of the transactions contemplated by the Berkshire
Agreement and the other transactions contemplated by the Plan and the
implementation and consummation of contracts, instruments, releases and other
agreements or documents created in connection with the Plan or the Berkshire
Agreement.
3. All conditions to the Closing under the Berkshire Agreement (other
than effectiveness of the Plan) shall have been satisfied or waived, and the
Closing under the Berkshire Agreement shall occur concurrently with the
Effective Date of the Plan.
4. The Plan and all Exhibits to the Plan shall not have been materially
amended, altered or modified from the Plan as confirmed by the Confirmation
Order, unless such material amendment, alteration or modification has been made
in accordance with Article V or Section XIII.C.
C. WAIVER OF CONDITIONS TO THE CONFIRMATION OR EFFECTIVE DATE
The conditions to Confirmation set forth in Section IX.A and the
conditions to the Effective Date set forth in Section IX.B, other than the entry
of the Confirmation Order, may be waived in whole or part by the Debtors at any
time without an order of the Bankruptcy Court, but only with the consent of the
Buyer. The failure to satisfy or waive a condition may be asserted by a Debtor
with the Buyer's consent regardless of the circumstances giving rise to the
failure of such condition to be satisfied (including any action or inaction by
the Debtors).
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D. EFFECT OF NONOCCURRENCE OF CONDITIONS TO THE EFFECTIVE DATE
If each of the conditions to the Effective Date is not satisfied or
duly waived in accordance with Section IX.C, then upon motion by the Debtors and
upon notice to such parties in interest as the Bankruptcy Court may direct, the
Confirmation Order will be vacated by the Bankruptcy Court; provided, however,
that, notwithstanding the Filing of such motion, the Confirmation Order may not
be vacated if each of the conditions to the Effective Date is either satisfied
or duly waived before the Bankruptcy Court enters an order granting such motion.
If the Confirmation Order is vacated pursuant to this Section IX.D, (1) the Plan
will be null and void in all respects, including with respect to: (a) the
discharge of Claims and termination of Interests pursuant to section 1141 of the
Bankruptcy Code and (b) the assumptions, assignments or rejections of Executory
Contracts and Unexpired Leases pursuant to Sections V.A and V.C; and (2) nothing
contained in the Plan will: (a) constitute a waiver or release of any claims by
or against, or any Interest in, the Debtors or (b) prejudice in any manner the
rights of the Debtors or any other party in interest.
ARTICLE X.
CRAMDOWN
The Debtors request Confirmation under section 1129(b) of the
Bankruptcy Code with respect to any impaired Class that does not accept the Plan
pursuant to section 1126 of the Bankruptcy Code. The Debtors reserve the right
to modify the Plan to the extent, if any, that Confirmation pursuant to section
1129(b) of the Bankruptcy Code requires modification.
ARTICLE XI.
DISCHARGE, TERMINATION, INJUNCTION
AND SUBORDINATION RIGHTS
A. DISCHARGE OF CLAIMS AND TERMINATION OF INTERESTS
1. Except as provided in the Plan or in the Confirmation Order, the
rights afforded under the Plan and the treatment of Claims and Interests under
the Plan will be in exchange for and in complete satisfaction, discharge and
release of all Claims and termination of all Interests arising on or before the
Effective Date, including any interest accrued on Claims from the Petition Date.
Except as provided in the Plan or in the Confirmation Order, Confirmation will,
as of the Effective Date: (a) discharge the Debtors from all Claims or other
debts that arose on or before the Effective Date, and all debts of the kind
specified in section 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or
not (i) a proof of Claim based on such debt is Filed or deemed Filed pursuant to
section 501 of the Bankruptcy Code, (ii) a Claim based on such debt is allowed
pursuant to section 502 of the Bankruptcy Code or (iii) the holder of a Claim
based on such debt has accepted the Plan; and (b) terminate all Interests and
other rights of equity security holders in the Debtors.
2. In accordance with the foregoing, except as provided in the Plan or
the Confirmation Order, the Confirmation Order will be a judicial determination,
as of the Effective Date, of a discharge of all such Claims and other debts and
liabilities against the Debtors and a termination of all such Interests and
other rights of equity security holders in the Debtors, pursuant to sections 524
and 1141 of the Bankruptcy Code, and such discharge will void any judgment
obtained against a Debtor at any time, to the extent that such judgment relates
to a discharged Claim or terminated Interest.
B. INJUNCTIONS
1. Except as provided in the Plan or the Confirmation Order, as of the
Effective Date, all entities that have held, currently hold or may hold a Claim
or other debt or liability that is discharged or an Interest or other right of
an equity security holder that is terminated pursuant to the terms of the Plan
will be permanently enjoined from
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taking any of the following actions on account of any such discharged Claims,
debts or liabilities or terminated Interests or rights: (a) commencing or
continuing in any manner any action or other proceeding against the Debtors,
Reorganized Debtors, Estates, BII Distribution Trust, Distribution Trust
Representative or their respective property, other than to enforce any right
pursuant to the Plan to a Distribution; (b) enforcing, attaching, collecting or
recovering in any manner any judgment, award, decree or order against the
Debtors, Reorganized Debtors, Estates, BII Distribution Trust, Distribution
Trust Representative or their respective property, other than as permitted
pursuant to (a) above; (c) creating, perfecting or enforcing any lien or
encumbrance against the Debtors, Reorganized Debtors, Estates, BII Distribution
Trust, Distribution Trust Representative or their respective property; (d)
asserting a setoff, right of subrogation or recoupment of any kind against any
debt, liability or obligation due to the Debtors, Reorganized Debtors, Estates,
BII Distribution Trust or Distribution Trust Representative; and (e) commencing
or continuing any action, in any manner, in any place that does not comply with
or is inconsistent with the provisions of the Plan.
2. As of the Effective Date, all entities that have held, currently hold
or may hold any Liabilities that are released pursuant to the Plan will be
permanently enjoined from taking any of the following actions against any
released entity or its property on account of such released Liabilities: (a)
commencing or continuing in any manner any action or other proceeding; (b)
enforcing, attaching, collecting or recovering in any manner any judgment,
award, decree or order; (c) creating, perfecting or enforcing any lien or
encumbrance; (d) asserting a setoff, right of subrogation or recoupment of any
kind against any debt, liability or obligation due to any released entity; and
(e) commencing or continuing any action, in any manner, in any place that does
not comply with or is inconsistent with the provisions of the Plan.
3. By accepting Distributions pursuant to the Plan, each holder of an
Allowed Claim receiving Distributions pursuant to the Plan will be deemed to
have specifically consented to the injunctions set forth in this Section XI.B.
C. TERMINATION OF SUBORDINATION RIGHTS AND SETTLEMENT OF RELATED CLAIMS AND
CONTROVERSIES
1. The classification and manner of satisfying all Claims and Interests
under the Plan take into consideration all subordination rights, whether arising
under general principles of equitable subordination, contract, section 510(c) of
the Bankruptcy Code or otherwise, that a holder of a Claim or Interest may have
against other Claim or Interest holders with respect to any Distribution made
pursuant to the Plan. All subordination rights that a holder of a Claim may have
with respect to any Distribution to be made pursuant to the Plan will be
discharged and terminated, and all actions related to the enforcement of such
subordination rights will be permanently enjoined. Accordingly, Distributions
pursuant to the Plan to holders of Allowed Claims will not be subject to payment
to a beneficiary of such terminated subordination rights or to levy,
garnishment, attachment or other legal process by a beneficiary of such
terminated subordination rights.
2. Pursuant to Bankruptcy Rule 9019 and in consideration for the
Distributions and other benefits provided under the Plan, the provisions of the
Plan will constitute a good faith compromise and settlement of all claims or
controversies relating to the subordination rights that a holder of a Claim may
have with respect to any Allowed Claim or any Distribution to be made pursuant
to the Plan on account of any Allowed Claim. The entry of the Confirmation Order
will constitute the Bankruptcy Court's approval, as of the Effective Date, of
the compromise or settlement of all such claims or controversies and the
Bankruptcy Court's finding that such compromise or settlement is in the best
interests of the Debtors, Reorganized Debtors, Estates and their respective
property and Claim and Interest holders and is fair, equitable and reasonable.
3. Notwithstanding the foregoing, the termination of subordination rights
provided for in this Section XI.C shall not apply to Claims of transferees based
upon transfers voided pursuant to the prosecution of the Recovery Actions.
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ARTICLE XII.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence
of the Effective Date, the Bankruptcy Court will retain such jurisdiction over
the Reorganization Cases after the Effective Date as is legally permissible,
including jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate or establish
the priority or secured or unsecured status of any Claim or Interest, including
the resolution of any request for payment of any Administrative Claim; and the
resolution of any objections to the allowance, priority or classification of
Claims or Interests.
2. Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or the Plan
for periods ending on or before the Effective Date;
3. Resolve any matters related to the assumption, assumption and
assignment or rejection of any Executory Contract or Unexpired Lease to which
any Debtor is a party or with respect to which any Debtor or Reorganized Debtor
may be liable and to hear, determine and, if necessary, liquidate any Claims
arising therefrom, including any Cure Amount Claims;
4. Resolve any matters related to the Berkshire Agreement, unless
specifically provided otherwise in the Berkshire Agreement;
5. Ensure that Distributions to holders of Allowed Claims are
accomplished pursuant to the provisions of the Plan;
6. Decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters, and grant or deny any applications
involving the Debtors, the BII Distribution Trust or the Distribution Trust
Representative that may be pending on the Effective Date or brought thereafter;
7. Enter such orders as may be necessary or appropriate to implement or
consummate the provisions of the Plan and all contracts, instruments, releases
and other agreements or documents entered into or delivered in connection with
the Plan, the Disclosure Statement or the Confirmation Order;
8. Resolve any cases, controversies, suits or disputes that may arise in
connection with the consummation, interpretation or enforcement of the Plan or
any contract, instrument, release or other agreement or document that is entered
into or delivered pursuant to the Plan or any entity's rights arising from or
obligations incurred in connection with the Plan or such documents;
9. Modify the Plan before or after the Effective Date pursuant to section
1127 of the Bankruptcy Code; modify the Disclosure Statement, the Confirmation
Order or any contract, instrument, release or other agreement or document
entered into or delivered in connection with the Plan, the Disclosure Statement
or the Confirmation Order; or remedy any defect or omission or reconcile any
inconsistency in any Bankruptcy Court order, the Plan, the Disclosure Statement,
the Confirmation Order or any contract, instrument, release or other agreement
or document entered into, delivered or created in connection with the Plan, the
Disclosure Statement or the Confirmation Order, in such manner as may be
necessary or appropriate to consummate the Plan;
10. Issue injunctions, enforce the injunctions contained in the Plan and
the Confirmation Order, enter and implement other orders or take such other
actions as may be necessary or appropriate to restrain interference by any
entity with consummation, implementation or enforcement of the Plan or the
Confirmation Order;
11. Enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason or in any respect modified, stayed,
reversed, revoked or vacated or Distributions pursuant to the Plan are enjoined
or stayed;
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12. Determine any other matters that may arise in connection with or
relate to the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release or other agreement or document entered into or
delivered in connection with the Plan, the Disclosure Statement or the
Confirmation Order;
13. Enter a final decree closing the Reorganization Cases; and
14. Determine matters concerning state, local and federal Taxes in
accordance with sections 346, 505 and 1146 of the Bankruptcy Code, including any
Disputed Claims for Taxes.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
A. DISSOLUTION OF THE CREDITORS' COMMITTEE
On the Effective Date, the Creditors' Committee will dissolve and the
members of the Creditors' Committee will be released and discharged from all
duties and obligations arising from or related to the Reorganization Cases. The
Professionals retained by the Creditors' Committee and the members thereof will
not be entitled to assert any Fee Claim for any services rendered or expenses
incurred after the Effective Date, except for services rendered and expenses
incurred in connection with any applications for allowance of compensation and
reimbursement of expenses pending on the Effective Date or Filed and served
after the Effective Date and in connection with any appeal of the Confirmation
Order.
B. LIMITATION OF LIABILITY
1. The Released Parties will neither have nor incur any liability to any
entity for any act taken or omitted to be taken in connection with or related to
the consideration, formulation, preparation, dissemination, implementation,
Confirmation or consummation of the Plan, the Disclosure Statement, the
Berkshire Agreement, the Bidding Procedures, the Auction or any alternative
transaction or plan of reorganization proposed in connection with the
Reorganization Cases or any contract, instrument, release or other agreement or
document created or entered into, or any other act taken or omitted to be taken,
in connection therewith; provided, however, that the foregoing provisions of
this Section XIII.B.1 will have no effect on: (a) the liability of any entity
that would otherwise result from the failure to perform or pay any obligation or
liability under the Plan or any contract, instrument, release or other agreement
or document to be entered into or delivered in connection with the Plan,
including the Berkshire Agreement, or (b) the liability of any entity that would
otherwise result from any such act or omission to the extent that such act or
omission is determined in a Final Order to have constituted gross negligence or
willful misconduct.
2. Notwithstanding any other provision of this Plan, no holder of a Claim
or Interest, no other party in interest, none of their respective agents,
employees, representatives, financial advisors, attorneys or affiliates, and no
successors or assigns of the foregoing, shall have any right of action against
any Released Party for any act or omission in connection with, relating to or
arising out of the consideration, formulation, preparation, dissemination,
implementation, Confirmation or consummation of the Plan, the Disclosure
Statement, the Berkshire Agreement, the Bidding Procedures, the Auction or any
alternative transaction or plan of reorganization proposed in connection with
the Reorganization Cases or any contract, instrument, release or other agreement
or document created or entered into, or any other act taken or omitted to be
taken, in connection therewith, except for: (a) the liability of any entity that
would otherwise result from the failure to perform or pay any obligation or
liability under the Plan or any contract, instrument, release or other agreement
or document to be entered into or delivered in connection with the Plan,
including the Berkshire Agreement, or (b) the liability of any entity that would
otherwise result from any such act or omission to the extent that such act or
omission is determined in a Final Order to have constituted gross negligence or
willful misconduct.
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C. MODIFICATION OF THE PLAN AND EXHIBITS
Subject to the restrictions on modifications set forth in section 1127
of the Bankruptcy Code and subject to obtaining the Buyer's consent for any
alteration, amendment or modification that affects the Reorganized Debtors, the
Buyer or the Berkshire Agreement, which consent shall not be unreasonably
withheld, the Debtors or Reorganized Debtors, as applicable, reserve the right
to alter, amend or modify the Plan and the Exhibits to the Plan at any time
before substantial consummation of the Plan.
D. TERM OF INJUNCTIONS OR STAYS
Unless otherwise provided herein or in the Confirmation Order, all
injunctions or stays provided for in the Reorganization Cases under section 105
or 362 of the Bankruptcy Code or otherwise shall remain in full force and effect
until the Effective Date. Nothing in this Section XIII.D shall limit or affect
the injunctions or stays imposed under the Plan or in the Confirmation Order on
or after the Effective Date.
E. REVOCATION OF THE PLAN
The Debtors reserve the right to revoke or withdraw the Plan as to any
or all of the Debtors prior to the Confirmation Date. If the Debtors revoke or
withdraw the Plan as to any or all of the Debtors, or if Confirmation as to any
or all of the Debtors does not occur, then, with respect to such Debtors, the
Plan will be null and void in all respects, and nothing contained in the Plan
will: (1) constitute a waiver or release of any claims by or against, or any
Interests in, such Debtors or (2) prejudice in any manner the rights of any
Debtors or any other party.
F. SEVERABILITY OF PLAN PROVISIONS
If, prior to Confirmation, any term or provision of the Plan is held
by the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy
Court will 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 then will be applicable as altered or
interpreted; provided that any such alteration or interpretation must be in form
and substance acceptable to the Debtors. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions of the
Plan will remain in full force and effect and will in no way be affected,
impaired or invalidated by such holding, alteration or interpretation. The
Confirmation Order will constitute a judicial determination and will provide
that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
G. SUCCESSORS AND ASSIGNS
The rights, benefits and obligations of any entity named or referred
to in the Plan will be binding on, and will inure to the benefit of, any heir,
executor, administrator, successor or assign of such entity.
H. THE PLAN SUPPLEMENT
Except as otherwise provided in the Plan, forms of the following
documents shall be contained in the Plan Supplement and filed with the Clerk of
the Court at least ten days prior to the Voting Deadline: (1) the BII
Distribution Trust Agreement and (2) the amended bylaws and the amended
certificate of incorporation for Reorganized Burlington. Upon its filing with
the Court, the Plan Supplement will be available to any party in interest on the
Document Website.
I. RELATIONSHIP AMONG PLAN, DISCLOSURE STATEMENT AND CERTAIN OTHER DOCUMENTS
To the extent the Plan is inconsistent with the Disclosure Statement,
the provisions of the Plan shall be controlling. The Berkshire Agreement shall
be attached along with the Plan to the Confirmation Order. To the extent the
Plan is inconsistent with the Berkshire Agreement, the provisions of the
Berkshire Agreement shall be controlling.
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J. SERVICE OF CERTAIN PLAN EXHIBITS, DISCLOSURE STATEMENT EXHIBITS AND PLAN
SUPPLEMENT
Because the Exhibits and the Plan Supplement to the Plan are
voluminous, the Exhibits and the Plan Supplement are not being served with
copies of the Plan and the Disclosure Statement. All of the Exhibits and Plan
Supplement are or will be available to any party in interest on the Document
Website.
K. SERVICE OF DOCUMENTS
Any pleading, notice or other document required by the Plan or
Confirmation Order to be served on or delivered to the Debtors, Reorganized
Debtors, Buyer, Creditors' Committee, DIP Lender, Prepetition Lenders or United
States Trustee must be sent by overnight delivery service, facsimile
transmission, courier service or messenger to:
1. DEBTORS AND REORGANIZED DEBTORS:
Burlington Industries, Inc.
Attn: John D. Englar, Esq.
3330 West Friendly Avenue
Greensboro, NC 27410
Facsimile No.: 336-379-4504
(Debtors and Reorganized Debtors)
David G. Heiman, Esq.
Michelle Morgan Harner, Esq.
Jones Day
901 Lakeside Avenue
Cleveland, OH 44114
Facsimile No.: 216-579-0212
Daniel J. DeFranceschi, Esq.
Rebecca L. Booth, Esq.
Richard, Layton & Finger, P.A.
P.O. Box 551
One Rodney Square
Wilmington, DE 19801
Facsimile No.: 302-651-7701
(Counsel to Debtors and Reorganized Debtors)
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2. CREDITORS' COMMITTEE:
Charles R. Gibbs, Esq.
Keith M. Aurzada, Esq.
David F. Staber, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Ave., Ste. 4100
Dallas, TX 75201
Facsimile No.: 214-969-4343
Mark Minuti, Esq.
Donald J. Detweiler, Esq.
Saul Ewing LLP
222 Delaware Ave., Ste. 1200
P.O. Box 1266
Wilmington, DE 19899
Facsimile No.: 302-421-5872
(Counsel to Creditors' Committee)
3. DIP LENDERS:
Robert H. Scheibe, Esq.
Peter Montoni, Jr., Esq.
Morgan, Lewis & Bockius LLP
101 Park Ave.
New York, NY 10178-0060
Facsimile No.: 212-309-6273
Teresa K.D. Currier, Esq.
Klett, Rooney, Lieber & Schorling
1000 West Street, Suite 1410
P.O. Box 1397
Wilmington, DE 19899-1397
Facsimile No.: 314-552-4295
(Counsel to DIP Lenders)
4. PREPETITION LENDERS:
Peter V. Pantaleo, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Facsimile No.: 212-455-2502
Teresa K.D. Currier, Esq.
Klett, Rooney, Lieber & Schorling
1000 West Street, Suite 1410
P.O. Box 1397
Wilmington, DE 19899-1397
Facsimile No.: 314-552-4295
(Counsel to Chase Bank as agent under the Prepetition Credit Facility)
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5. BUYER:
Berkshire Hathaway Inc.
1440 Kiewit Plaza
Omaha, NE 68131
Facsimile No.: 402-346-3375
Attn: Chief Financial Officer
R. Gregory Morgan, Esq.
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
Facsimile No.: 213-687-3702
(Counsel to Buyer)
6. UNITED STATES TRUSTEE
Julie Compton, Esq.
Office of the United States Trustee
844 King Street
Room 2313, Lockbox 35
Wilmington, DE 19801
Facsimile No.: 302-573-6497
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Dated: February 11, 2003 Respectfully submitted,
BURLINGTON INDUSTRIES, INC. (for itself
and on behalf of its subsidiaries)
By: /s/ JOHN D. ENGLAR
---------------------------------
Name: John D. Englar
Title: Senior Vice President
COUNSEL:
Daniel J. DeFranceschi (DE Bar No. 2732)
Rebecca L. Booth (DE Bar No. 4031)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
Phone: (302) 651-7700
-and-
David G. Heiman (OH 0038271)
Michelle Morgan Harner (OH 0064833)
Gus Kallergis (OH 0071557)
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
ATTORNEYS FOR DEBTORS AND
DEBTORS IN POSSESSION
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