UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ---------------------------------------------------X
:
In re : Chapter 11 Cases Nos.
:
AI REALTY MARKETING OF NEW YORK, :
INC., LASER ACQUISITION CORP., DDG I, : 01-40252 (AJG) through
INC., SUNBEAM AMERICAS : 01-40290 (AJG)
HOLDINGS, LTD., et al., :
:
:
:
:
Debtors. : (Jointly Administered)
:
- ---------------------------------------------------X
DEBTORS' JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
WEIL, GOTSHAL & MANGES LLP
Attorneys for the Debtors
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Dated: New York, New York
February 6, 2001
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND CONSTRUCTION OF TERMS...........................1
1.1 Administrative Expense Claim....................................1
1.2 Affiliate.......................................................1
1.3 Affiliate Claim.................................................2
1.4 Assumed Corporate Indemnities...................................2
1.5 Assumed Indemnification Claims..................................2
1.6 Bank Credit Agreement...........................................2
1.7 Banks...........................................................2
1.8 Bankruptcy Code.................................................2
1.9 Bankruptcy Court................................................2
1.10 Bankruptcy Rules................................................2
1.11 Business Day....................................................2
1.12 Cash............................................................2
1.13 Causes of Action................................................2
1.14 Chapter 11 Cases................................................2
1.15 Claim...........................................................2
1.16 Class...........................................................2
1.17 Collateral......................................................3
1.18 Commencement Date...............................................3
1.19 Confirmation Date...............................................3
1.20 Confirmation Hearing............................................3
1.21 Confirmation Order..............................................3
1.22 Debtor Affiliate Claim..........................................3
1.23 Debtor Guarantors...............................................3
1.24 Debtors.........................................................3
1.25 Debtors in Possession...........................................3
1.26 Disclosure Statement............................................3
1.27 Effective Date..................................................3
1.28 Entity..........................................................3
1.29 Equity Interest.................................................4
1.30 Final Order.....................................................4
i
TABLE OF CONTENTS
(continued)
Page
1.31 GECC means General Electric Credit Corporation..................4
1.32 General Unsecured Claim.........................................4
1.33 Insured Claim...................................................4
1.34 Lien............................................................4
1.35 New Bank Guarantee and Security Agreement.......................4
1.36 New Sunbeam Corporation Secured Debt............................4
1.37 Non-Debtor Affiliates...........................................4
1.38 Non-Debtor Affiliate Claim......................................5
1.39 Other Priority Claim............................................5
1.40 Other Secured Claim.............................................5
1.41 Person..........................................................5
1.42 Plan............................................................5
1.43 Plan Supplement.................................................5
1.44 Post-Petition Banks.............................................5
1.45 Post-Petition Bank Credit Agreement.............................5
1.46 Priority Tax Claim..............................................5
1.47 Releasees.......................................................5
1.48 Reorganized Debtor Guarantors...................................5
1.49 Reorganized Debtors.............................................5
1.50 Reorganized Debtors By-laws.....................................5
1.51 Reorganized Debtors Certificates of Incorporation...............5
1.52 Schedules.......................................................6
1.53 Secured Bank Claims.............................................6
1.54 Secured Claim...................................................6
1.55 Sunbeam Affiliate Claim.........................................6
1.56 Sunbeam Corporation Plan........................................6
Article II TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND
PRIORITY TAX CLAIMS.............................................6
2.1 Administrative Expense Claims...................................6
2.2 Professional Compensation and Reimbursement Claims..............6
2.3 Priority Tax Claims.............................................7
Article III CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS...................7
ii
TABLE OF CONTENTS
(continued)
Page
Article IV TREATMENT OF CLAIMS AND EQUITY INTERESTS........................7
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS................................7
(a) Impairment and Voting...........................7
(b) Distributions...................................7
4.2 CLASS 2 -- OTHER SECURED CLAIMS.................................8
(a) Impairment and Voting...........................8
(b) Distributions/Reinstatement of Claims...........8
4.3 CLASS 3 -- SECURED BANK CLAIMS..................................8
(a) Impairment and Voting...........................8
(b) Distributions...................................8
4.4 CLASS 4 -- GENERAL UNSECURED CLAIMS.............................8
(a) Impairment and Voting...........................8
(b) Distributions/Reinstatement of Claims...........8
4.5 CLASS 5 -- AFFILIATE CLAIMS.....................................8
(a) Impairment and Voting...........................8
(b) Distributions/Reinstatement of Claims...........9
4.6 CLASS 6 -- EQUITY INTERESTS.....................................9
(a) Impairment and Voting...........................9
(b) Distributions/Reinstatement.....................9
Article V EXECUTORY CONTRACTS AND UNEXPIRED LEASES........................9
5.1 Assumption or Rejection of Executory Contracts
and Unexpired Leases............................................9
(a) Executory Contracts and Unexpired Leases........9
(b) Schedules of Rejected Executory Contracts and
Unexpired Leases; Inclusiveness.................9
(c) Insurance Policies..............................9
(d) Approval of Assumption, Assumption and
Assignment or Rejection of Executory Contracts
and Unexpired Leases...........................10
(e) Cure of Defaults...............................10
(f) Bar Date for Filing Proofs of Claim Relating
to Executory Contracts and Unexpired Leases
Rejected Pursuant to the Plan..................10
(g) Assumed Indemnification Obligations............10
(h) Compensation and Benefit Programs..............10
iii
TABLE OF CONTENTS
(continued)
Page
5.2 Retiree Benefits...............................................10
Article VI IMPLEMENTATION OF THE PLAN.....................................11
6.1 General........................................................11
6.2 Boards of Directors of Reorganized Debtors.....................11
6.3 Officers of Reorganized Debtors................................11
6.4 By-laws and Certificates of Incorporation......................11
6.5 Cancellation of Certain Securities.............................11
6.6 Restructuring Transactions.....................................11
Article VII EFFECT OF CONFIRMATION OF PLAN.................................11
7.1 Term of Bankruptcy Injunction or Stays.........................11
7.2 Revesting of Assets............................................11
7.3 Claims Extinguished............................................12
7.4 Discharge of Debtors...........................................12
7.5 Injunction.....................................................12
Article VIII CONFIRMATION AND EFFECTIVENESS OF THE PLAN.....................12
8.1 Conditions Precedent to Confirmation...........................12
8.2 Conditions Precedent to Effectiveness..........................13
8.3 Effect of Failure of Conditions................................14
8.4 Waiver of Conditions...........................................14
Article IX RETENTION OF JURISDICTION......................................14
Article X MISCELLANEOUS PROVISIONS.......................................15
10.1 Effectuating Documents and Further Transactions................15
10.2 Corporate Action...............................................15
10.3 Exemption from Transfer Taxes..................................15
10.4 Releases of Releasees..........................................15
10.5 Limited Release by Releasees...................................15
10.6 Exculpation....................................................16
10.7 Post-Effective Date Fees and Expenses..........................16
10.8 Payment of Statutory Fees......................................16
10.9 Amendment or Modification of the Plan..........................16
10.10 Severability...................................................16
iv
TABLE OF CONTENTS
(continued)
Page
10.11 Revocation or Withdrawal of the Plan...........................16
10.12 Binding Effect.................................................17
10.13 Notices........................................................17
10.14 Governing Law..................................................17
10.15 Withholding and Reporting Requirements.........................17
10.16 Plan Supplement................................................18
10.17 Sections 1125 and 1126 of the Bankruptcy Code..................18
10.18 Allocation of Plan Distributions...............................18
10.19 Headings.......................................................18
10.20 Exhibits/Schedules.............................................18
10.21 Filing of Additional Documents.................................19
v
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- --------------------------------------------x
:
In re : Chapter 11 Case Nos.
:
AI REALTY MARKETING OF NEW YORK, INC., :
LASER ACQUISITION CORP., DDG I, INC., : 01-___ (___) through
SUNBEAM AMERICAS HOLDINGS, LTD., et al., : 01-___ (___)
:
:
Debtors. : Jointly Administered
:
- --------------------------------------------x
DEBTORS' JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AI Realty Marketing of New York, Inc.; Laser Acquisition Corporation,
DDG I, Inc.; Sunbeam Americas Holdings, Ltd.; Beacon Exports, Inc.; BRK Brands,
Inc.; CC Outlet, Inc.; CMO, Inc.; Coleman Argentina, Inc.; Coleman International
Holdings, LLC; Coleman Powermate, Inc.; Coleman Puerto Rico, Inc.; Coleman
Venture Capital, Inc.; Coleman Worldwide Corp.; Family Gard, Inc.; First Alert,
Inc.; General Archery Industries, Inc.; GHI I, Inc.; JGK, Inc.; Kaimona, Inc.;
Kansas Acquisition Corp.; L.A. Services, Inc.; Nippon Coleman, Inc.; Packs &
Travel Corporation; Pearson Holdings, Inc.; PH III, Inc.; River View Corporation
of Barling, Inc.; SI II, Inc.; Sierra Corporation of Fort Smith, Inc.; Sunbeam
Health & Safety Company; Sunbeam Latin America, LLC; Sunbeam Products, Inc.;
Sunbeam Services, Inc.; Survival Gear, Inc.; Thalia Products Inc.; The Coleman
Company, Inc.; THL-FA IP Corp; Vero Dunes Venturer, Inc.; and Woodcraft
Equipment Company, propose the following joint plan of reorganization under
section 1121(a) of title 11 of the United States Code:
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Definitions. As used herein, the following terms have the respective
meanings specified below:
1.1 Administrative Expense Claim means any right to payment
constituting a cost or expense of administration of the Chapter 11 Cases under
sections 503(b) and 507(a)(1) of the Bankruptcy Code, including, without
limitation, any actual and necessary costs and expenses of preserving the
estates of the Debtors, any actual and necessary costs and expenses of operating
the business of the Debtors, any indebtedness or obligations incurred or assumed
by the Debtors in Possession in connection with the conduct of their business,
including, without limitation, for the acquisition or lease of property or an
interest in property or the rendition of services, all compensation and
reimbursement of expenses allowed by the Bankruptcy Court under section 330 or
503 of the Bankruptcy Code and any fees or charges assessed against the estate
of the Debtors under section 1930 of chapter 123 of title 28 of the United
States Code.
1.2 Affiliate has the meaning ascribed to such term in section 101(2)
of the Bankruptcy Code.
1.3 Affiliate Claim means any Debtor Affiliate Claim, Non-Debtor
Affiliate Claim and Sunbeam Affiliate Claim.
1.4 Assumed Corporate Indemnities mean any obligation of the Debtors to
defend, indemnify, reimburse or limit the liability of their present and any
former officers, directors and/or employees who were officers, directors and/or
employees, respectively, on or after the Commencement Date, solely in their
capacity as officers, directors and/or employees, against any claims or
obligations pursuant to the Debtors' certificates of incorporation or by-laws,
applicable state law or specific agreement, or any combination of the foregoing.
1.5 Assumed Indemnification Claims mean all Claims, if any, as to which
the claimant asserts rights based only upon the Assumed Corporate Indemnities.
1.6 Bank Credit Agreement means that certain Senior Credit Agreement,
dated as of March 30, 1998, among Sunbeam Corporation, the Debtor Guarantors,
certain non-debtor guarantors and the Banks, and any and all of the documents,
instruments and agreements relating thereto, including, without limitation, all
guarantees and security documents, instruments and agreements executed and
delivered in connection with the Senior Credit Agreement, as same may have been
amended, supplemented, modified, extended, replaced, refinanced, renewed or
restated as of the Commencement Date.
1.7 Banks means, collectively, the agents and lenders that are from
time to time parties to the Bank Credit Agreement.
1.8 Bankruptcy Code means title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Case.
1.9 Bankruptcy Court means the United States District Court for the
Southern District of New York having jurisdiction over the Chapter 11 Cases and,
to the extent of any reference under section 157 of title 28 of the United
States Code, the unit of such District Court under section 151 of title 28 of
the United States Code.
1.10 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075 of title 28
of the United States Code, and any Local Rules of the Bankruptcy Court.
1.11 Business Day means any day other than a Saturday, Sunday or any
other day on which commercial banks in New York, New York are required or
authorized to close by law or executive order.
1.12 Cash means legal tender of the United States of America.
1.13 Causes of Action means, without limitation, any and all actions,
causes of action, liabilities, obligations, rights, suits, damages, judgments,
claims and demands whatsoever, whether known or unknown, existing or hereafter
arising, in law, equity or otherwise, based in whole or in part upon any act or
omission or other event occurring prior to the Commencement Date or during the
course of the Chapter 11 Cases, including through the Effective Date.
1.14 Chapter 11 Cases means the cases under chapter 11 of the
Bankruptcy Code commenced by the Debtors in the Bankruptcy Court.
1.15 Claim has the meaning set forth in section 101 of the Bankruptcy
Code.
1.16 Class means a category of holders of Claims or Equity Interests as
set forth in Article III of the Plan.
2
1.17 Collateral means any property or interest in property of the
estates of the Debtors subject to a Lien to secure the payment or performance of
a Claim, which Lien is not subject to avoidance or otherwise invalid under the
Bankruptcy Code or applicable state law.
1.18 Commencement Date means February 6, 2001, the date on which the
Debtors commenced the Chapter 11 Cases.
1.19 Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket.
1.20 Confirmation Hearing means the hearing held by the Bankruptcy
Court to consider confirmation of the Plan pursuant to section 1129 of the
Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
1.21 Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.22 Debtor Affiliate Claim means any Claim, whether secured or
unsecured, of a Debtor against another Debtor.
1.23 Debtor Guarantors means, collectively, Beacon Exports, Inc.; BRK
Brands, Inc.; CC Outlet, Inc.; CMO, Inc.; Coleman Argentina, Inc.; Coleman
International Holdings, LLC; Coleman Powermate, Inc.; Coleman Puerto Rico, Inc.;
Coleman Venture Capital, Inc.; Coleman Worldwide Corp.; DDG I, Inc.; First
Alert, Inc.; GHI I, Inc.; JGK, Inc.; Kaimona, Inc.; Kansas Acquisition Corp.;
L.A. Services, Inc.; Laser Acquisition Corp.; Nippon Coleman, Inc.; Packs &
Travel Corporation; PH III, Inc.; SI II, Inc.; Sunbeam Americas Holdings, Ltd.;
Sunbeam Health & Safety Company; Sunbeam Latin America, LLC; Sunbeam Products,
Inc.; Sunbeam Services, Inc.; Survival Gear, Inc.; Thalia Products Inc.; The
Coleman Company, Inc.; THL-FA IP Corp; Vero Dunes Venturer, Inc.; and Woodcraft
Equipment Company.
1.24 Debtors means, collectively, AI Realty Marketing of New York,
Inc.; Laser Acquisition Corporation; DDG I, Inc.; Sunbeam Americas Holdings,
Ltd.; Beacon Exports, Inc.; BRK Brands, Inc.; CC Outlet, Inc.; CMO, Inc.;
Coleman Argentina, Inc.; Coleman International Holdings, LLC; Coleman Powermate,
Inc.; Coleman Puerto Rico, Inc.; Coleman Venture Capital, Inc.; Coleman
Worldwide Corp.; Family Gard, Inc.; First Alert, Inc.; General Archery
Industries, Inc.; GHI I, Inc.; JGK, Inc.; Kaimona, Inc.; Kansas Acquisition
Corp.; L.A. Services, Inc.; Nippon Coleman, Inc.; Packs & Travel Corporation;
Pearson Holdings, Inc.; PH III, Inc.; River View Corporation of Barling, Inc.;
SI II, Inc.; Sierra Corporation of Fort Smith, Inc.; Sunbeam Health & Safety
Company; Sunbeam Latin America, LLC; Sunbeam Products, Inc.; Sunbeam Services,
Inc.; Survival Gear, Inc.; Thalia Products Inc.; The Coleman Company, Inc.;
THL-FA IP Corp; Vero Dunes Venturer, Inc.; and Woodcraft Equipment Company.
1.25 Debtors in Possession means the Debtors in their capacity as
debtors in possession in the Chapter 11 Cases pursuant to sections 1101, 1107(a)
and 1108 of the Bankruptcy Code.
1.26 Disclosure Statement means the disclosure statement relating to
the Plan, including, without limitation, all exhibits and schedules thereto, as
approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code.
1.27 Effective Date means the first Business Day on which the
conditions specified in Section 8.1 of the Plan have been satisfied or waived.
1.28 Entity shall have the meaning set forth in section 101(15) of the
Bankruptcy Code.
3
1.29 Equity Interest means any share of common stock or other
instrument evidencing an ownership interest in any of the Debtors, whether or
not transferable, and any option, warrant or right, contractual or otherwise, to
acquire any such interest.
1.30 Final Order means an order of the Bankruptcy Court or any other
court of competent jurisdiction as to which the time to appeal, petition for
certiorari, or move for reargument or rehearing has expired and as to which no
appeal, petition for certiorari, or other proceedings for reargument or
rehearing shall then be pending or as to which any right to appeal, petition for
certiorari, reargue, or rehear shall have been waived in writing in form and
substance satisfactory to the Debtors or, on and after the Effective Date, the
Reorganized Debtors, or, in the event that an appeal, writ of certiorari, or
reargument or rehearing thereof has been sought, such order of the Bankruptcy
Court or other court of competent jurisdiction shall have been determined by the
highest court to which such order was appealed, or certiorari, reargument or
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules or applicable state court rules of civil procedure, may be
filed with respect to such order shall not cause such order not to be a Final
Order.
1.31 GECC means General Electric Credit Corporation.
1.32 General Unsecured Claim means any Claim other than a Secured
Claim, Administrative Expense Claim, Priority Tax Claim, Other Priority Claim
and Affiliate Claim.
1.33 Insured Claim means any Claim arising from an incident or
occurrence that is covered under the Debtors' insurance policies.
1.34 Lien has the meaning set forth in section 101 of the Bankruptcy
Code.
1.35 New Bank Guarantee and Security Agreement means the guarantee of
the New Secured Debt and the security agreements relating to such guarantee, and
all related documents and instruments to be executed and delivered by the Debtor
Guarantors pursuant to Section 4.3 of the Plan.
1.36 New Sunbeam Corporation Secured Debt means the secured debt issued
to the Banks by Sunbeam Corporation pursuant to the Sunbeam Corporation Plan.
1.37 Non-Debtor Affiliates means, collectively, Application Des Gaz,
S.A.S. (France); Bafiges S.A.S. (France); BRK Brands Europe Limited (England and
Wales); BRK Brands Pty Limited (Australia); BRK Electronics (Europe); BRK
Electronics S.A. (Belgium); Camping Gaz CS Spol S.R.O. (Czech Republic); Camping
Gaz GmbH (Austria); Camping Gaz Great Britain, L.T.D. (Great Britain); Camping
Gaz International Deutschland GmbH (Germany); Camping Gaz International
Portugal, L.T.D. (Portugal); Camping Gaz Italie S.r.L. (Italy); Camping Gaz Kft
(Hungary); Camping Gaz Suisse A.G. (Switzerland); Coleman Argentina S.A.
(Argentina); Coleman Asia Limited (Hong Kong); Coleman Benelux B.V.
(Netherlands); Coleman do Brasil Ltda. (Brasil); Coleman Deutschland GmbH
(Germany); Coleman Europe S.A./N.V. (Belgium); Coleman Japan Company, Ltd.
(Japan); Coleman Life Styles KK (Japan); Coleman SVB S.r.L (Italy); Electronica
BRK de Mexico (Mexico); Oster de Venezuela (Venezuela); Oster GmbH (Germany);
Oster International GmbH (Germany); Productos Coleman, S.A. (Spain); SI China
Ventures, Ltd. (Hong Kong); Sunbeam Corporation (Canada) Limited (Ontario) ;
Sunbeam Europe Limited (UK); Sunbeam Holdings S.A. de C.V. (Mexico); Sunbeam
International (Asia), Ltd.; Sunbeam International (Asia), Ltd. (Hong Kong);
Sunbeam Mexicana S.A. de C.V. (Mexico); Sunbeam-Oster de Acuna S.A. de C.V.
(Mexico); Sunbeam-Oster de Matarmoros S.A. de C.V. (Mexico); and Sunbeam-Oster
International (FSC), Inc. (Barbados).
4
1.38 Non-Debtor Affiliate Claim means any Claim, whether secured or
unsecured, of a Non-Debtor Affiliate against a Debtor.
1.39 Other Priority Claim means any Claim, other than an Administrative
Expense Claim or a Priority Tax Claim, entitled to priority in right of payment
under section 507(a) of the Bankruptcy Code.
1.40 Other Secured Claim means any Secured Claim, other than Secured
Bank Claims and Affiliate Claims that are Secured Claims.
1.41 Person shall have the meaning set forth in section 101(41) of the
Bankruptcy Code.
1.42 Plan means this chapter 11 plan of reorganization, including,
without limitation, the Plan Supplement and all exhibits, supplements,
appendices and schedules hereto, either in its present form or as the same may
be altered, amended or modified from time to time.
1.43 Plan Supplement means the forms of documents specified in Section
10.17 of the Plan.
1.44 Post-Petition Banks means, collectively, the agents and lenders
that are from time to time parties to the Post-Petition Credit Agreement.
1.45 Post-Petition Bank Credit Agreement means that certain Revolving
Credit and Guarantee Agreement, dated as of February 6, 2001, among Sunbeam
Corporation, the subsidiaries of Sunbeam Corporation parties thereto, and the
agents and lenders from time to time parties thereto, and any and all of the
documents, instruments and agreements relating thereto, including, without
limitation, all guarantees and security documents, instruments and agreements
executed and delivered in connection with the Post-Petition Credit Agreement, as
the same may have been amended, restated, supplemented or otherwise modified
from time to time.
1.46 Priority Tax Claim means any Claim of a governmental unit of the
kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.47 Releasees means all present and former officers and directors of
the Debtors who were directors or officers, respectively, on or after the
Commencement Date, and any other Persons who serve or served as members of
management of the Debtors on or after the Commencement Date, all present and
former Banks and Post-Petition Banks, all present and former officers and
directors and other Persons who serve or served as members of the management of
any present or former Bank and Post-Petition Bank, and all advisors, consultants
or professionals of or to the Debtors, the Banks and the Post-Petition Banks.
1.48 Reorganized Debtor Guarantors means the Debtor Guarantors on and
after the Effective Date.
1.49 Reorganized Debtors means the Debtors on and after the Effective
Date.
1.50 Reorganized Debtors By-laws means the amended and restated By-laws
of the Reorganized Debtors, which shall be in substantially the form contained
in the Plan Supplement.
1.51 Reorganized Debtors Certificates of Incorporation means the
amended and restated Certificates of Incorporation of the Reorganized Debtors,
which shall be in substantially the form contained in the Plan Supplement.
5
1.52 Schedules means the schedule of assets and liabilities, the list
of holders of Equity Interests and the statement of financial affairs filed by
the Debtors under section 521 of the Bankruptcy Code and Bankruptcy Rule 1007,
and all amendments and modifications thereto.
1.53 Secured Bank Claims means all Claims of the Banks against the
Debtors arising under or in connection with the Bank Credit Agreement,
including, without limitation, any Claims of the Banks that are converted to
postpetition administrative expense claims pursuant to any order of the
Bankruptcy Court approving the provision of adequate protection to holders of
Secured Bank Claims.
1.54 Secured Claim means any Claim, to the extent reflected in the
Schedules as a Secured Claim, which is secured by a Lien on Collateral to the
extent of the value of such Collateral, as determined in accordance with section
506(a) of the Bankruptcy Code, or, in the event that such Claim is subject to a
permissible setoff under section 553 of the Bankruptcy Code, to the extent of
such permissible setoff, including, without limitation, Secured Bank Claims and
Other Secured Claims.
1.55 Sunbeam Affiliate Claim means any Claim of Sunbeam Corporation,
whether secured or unsecured, against any Debtor.
1.56 Sunbeam Corporation Plan means the chapter 11 plan of
reorganization proposed by Sunbeam Corporation in its separately administered
chapter 11 case pending in the Bankruptcy Court.
Interpretation; Application of Definitions and Rules of Construction.
Wherever from the context it appears appropriate, each term stated in either the
singular or the plural shall include both the singular and the plural and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter. Unless otherwise specified, all section,
article, schedule or exhibit references in the Plan are to the respective
Section in, Article of, Schedule to, or Exhibit to, the Plan. The words
"herein," "hereof," "hereto," "hereunder" and other words of similar import
refer to the Plan as a whole and not to any particular section, subsection or
clause contained in the Plan. The rules of construction contained in section 102
of the Bankruptcy Code shall apply to the construction of the Plan. A term used
herein that is not defined herein, but that is used in the Bankruptcy Code,
shall have the meaning ascribed to that term in the Bankruptcy Code. The
headings in the Plan are for convenience of reference only and shall not limit
or otherwise affect the provisions of the Plan.
ARTICLE II
TREATMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Expense Claims. Except to the extent that any entity
entitled to payment of any Administrative Expense Claim agrees to a less
favorable treatment, each holder of an Administrative Expense Claim shall
receive Cash in an amount equal to such Administrative Expense Claim on the
Effective Date or as soon thereafter as is practicable; provided, however, that
Administrative Expense Claims representing liabilities incurred in the ordinary
course of business by the Debtors in Possession or liabilities arising under
loans or advances to or other obligations incurred by the Debtors in Possession
shall be paid in full and performed by the applicable Reorganized Debtors in the
ordinary course of business in accordance with the terms and subject to the
conditions of any agreements governing, instruments evidencing or other
documents relating to such transactions.
2.2 Professional Compensation and Reimbursement Claims. All entities
seeking an award by the Bankruptcy Court of compensation for services rendered
or reimbursement of expenses incurred through and including the Effective Date
under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy
Code shall (a) file their respective final applications for allowances of
compensation for services rendered and reimbursement of expenses incurred
through the Effective Date by no later than the date that is 60 days after the
6
Effective Date, or such other date as may be fixed by the Bankruptcy Court and
(b) if granted such an award by the Bankruptcy Court, be paid in full in such
amounts as are allowed by the Bankruptcy Court (i) on the date of such
allowance, or as soon thereafter as is practicable or (ii) upon such other terms
as may be mutually agreed upon between such holder of an Administrative Expense
Claim and the Reorganized Debtors.
2.3 Priority Tax Claims. Except to the extent that a holder of a
Priority Tax Claim has been paid by the Debtors prior to the Effective Date or
agrees to a different treatment, each holder of a Priority Tax Claim shall
receive, in full and complete settlement, satisfaction and discharge of its
Priority Tax Claim, at the option of the Reorganized Debtors, (a) Cash in an
amount equal to such Priority Tax Claim on the Effective Date or as soon
thereafter as is practicable or (b) equal annual Cash payments in an aggregate
amount equal to such Priority Tax Claim, together with interest at a fixed
annual rate equal to 8.0%, over a period through the sixth anniversary of the
date of assessment of such Priority Tax Claim, or upon such other terms
determined by the Bankruptcy Court to provide the holder of such Priority Tax
Claim deferred Cash payments having a value, as of the Effective Date, equal to
such Priority Tax Claim; provided, however, that the Debtors must obtain the
consent of the Banks in order to elect option (a).
ARTICLE III
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Claims, other than Administrative Expense Claims and Priority Tax
Claims, and Equity Interests, are classified for all purposes, including voting,
confirmation and distribution pursuant to the Plan, as follows:
Class Status
- ----- ------
Class 1 -- Other Priority Claims Unimpaired
Class 2 -- Other Secured Claims Unimpaired
Class 3 -- Secured Bank Claims Impaired
Class 4 -- General Unsecured Claims Unimpaired
Class 5 -- Affiliate Claims Unimpaired
Class 6 -- Equity Interests Unimpaired
ARTICLE IV
TREATMENT OF CLAIMS AND EQUITY INTERESTS
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS.
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each
holder of an Other Priority Claim is conclusively presumed to have accepted the
Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that a holder of an Other
Priority Claim has been paid by the Debtors prior to the Effective Date or
agrees to a different treatment, each holder of an Other Priority Claim shall
receive, in full and complete settlement, satisfaction and discharge of its
Other Priority Claim, Cash in an amount equal to such Other Priority Claim on
the Effective Date or as soon thereafter as is practicable.
7
4.2 CLASS 2 -- OTHER SECURED CLAIMS.
(a) Impairment and Voting. Class 2 is unimpaired by the Plan. Each
holder of an Other Secured Claim is conclusively presumed to have accepted the
Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. Except to the extent that a
holder of an Other Secured Claim has been paid by the Debtors prior to the
Effective Date or agrees to a different treatment, each holder of an Other
Secured Claim shall, in full and complete settlement, satisfaction and discharge
of its Other Secured Claim, at the sole option of the Reorganized Debtors, (i)
be reinstated and rendered unimpaired in accordance with section 1124 of the
Bankruptcy Code, (ii) receive Cash in an amount equal to such Other Secured
Claim, including any interest on such Other Secured Claim required to be paid
pursuant to section 506(b) of the Bankruptcy Code, on the Effective Date or as
soon thereafter as is practicable or (iii) receive the Collateral securing its
Other Secured Claim and any interest on such Other Secured Claim required to be
paid pursuant to section 506(b) of the Bankruptcy Code, on the Effective Date or
as soon thereafter as is practicable.
4.3 CLASS 3 -- SECURED BANK CLAIMS.
(a) Impairment and Voting. Class 3 is impaired by the Plan. Each holder
of a Secured Bank Claim is entitled to vote to accept or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as is
practicable, holders of Secured Bank Claims as of the Record Date shall receive,
in full and complete settlement, satisfaction, release and discharge of their
Secured Bank Claims against the Debtors, (i) the guarantees and Liens granted
pursuant to the New Bank Guarantee and Security Agreement; and (ii) the releases
set forth in Section 10.4 of the Plan. In addition, each holder of a Secured
Bank Claim shall be entitled to retain all amounts paid to it or on its behalf
as adequate protection or otherwise, and the Reorganized Debtors will continue
to pay the professional fees of the holders of Secured Bank Claims after the
Confirmation Date with respect to matters relating to the Plan or the Chapter 11
Cases in accordance with the terms and conditions of the orders approving the
Post-Petition Credit Agreement.
4.4 CLASS 4 -- GENERAL UNSECURED CLAIMS
(a) Impairment and Voting. Class 4 is unimpaired by the Plan. Each
holder of a General Unsecured Claim is conclusively presumed to have accepted
the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. To the extent not paid prior
to the Effective Date and except to the extent that a holder of a General
Unsecured Claim agrees to a different treatment, each General Unsecured Claim
shall be reinstated and rendered unimpaired in accordance with section 1124 of
the Bankruptcy Code.
4.5 CLASS 5 -- AFFILIATE CLAIMS
(a) Impairment and Voting. Class 5 is unimpaired by the Plan. Each
holder of an Affiliate Claim is conclusively presumed to have accepted the Plan
and is not entitled to vote to accept or reject the Plan.
8
(b) Distributions/Reinstatement of Claims. Each Affiliate Claim shall
be reinstated and rendered unimpaired in accordance with section 1124 of the
Bankruptcy Code.
4.6 CLASS 6 -- EQUITY INTERESTS
(a) Impairment and Voting. Class 6 is unimpaired by the Plan. Each
holder of an Equity Interest is conclusively presumed to have accepted the Plan
and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement. The Equity Interests shall be
reinstated and rendered unimpaired in accordance with section 1124 of the
Bankruptcy Code and shall remain outstanding on and after the Effective Date,
except as otherwise provided in the Plan.
ARTICLE V
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
5.1 Assumption or Rejection of Executory Contracts and Unexpired
Leases.
(a) Executory Contracts and Unexpired Leases. Pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts and
unexpired leases that exist between the Debtors and any Person or Entity shall
be deemed assumed by the Debtors as of the Effective Date, except for any
executory contract or unexpired lease (i) that has been rejected pursuant to an
order of the Bankruptcy Court entered prior to the Confirmation Date, (ii) as to
which a motion for approval of the rejection of such executory contract or
unexpired lease has been filed and served prior to the Confirmation Date or
(iii) that is set forth in Schedule 5.1(a)(x) (executory contracts) or Schedule
5.1(a)(y) (unexpired leases), which Schedules shall be included in the Plan
Supplement; provided, however, that the Debtors reserve the right, on or prior
to the Confirmation Date, to amend Schedules 5.1(a)(x) or 5.1(a)(y) to delete
any executory contract or unexpired lease therefrom or add any executory
contract or unexpired lease thereto, in which event such executory contract(s)
or unexpired lease(s) shall be deemed to be, respectively, assumed by the
Debtors or rejected. The Debtors shall provide notice of any amendments to
Schedules 5.1(a)(x) or 5.1(a)(y) to the parties to the executory contracts and
unexpired leases affected thereby. The listing of a document on Schedules
5.1(a)(x) and 5.1(a)(y) shall not constitute an admission by the Debtors that
such document is an executory contract or an unexpired lease or that the Debtors
have any liability thereunder.
(b) Schedules of Rejected Executory Contracts and Unexpired Leases;
Inclusiveness. Each executory contract and unexpired lease listed or to be
listed on Schedules 5.1(a)(x) or 5.1(a)(y) that relates to the use or occupancy
of real property shall include (i) modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract
or unexpired lease, without regard to whether such agreement, instrument or
other document is listed on Schedules 5.1(a)(x) or 5.1(a)(y) and (ii) executory
contracts or unexpired leases appurtenant to the premises listed on Schedules
5.1(a)(x) or 5.1(a)(y), including, without limitation, all easements, licenses,
permits, rights, privileges, immunities, options, rights of first refusal,
powers, uses, usufructs, reciprocal easement agreements, vault, tunnel or bridge
agreements or franchises, and any other interests in real estate or rights in
rem relating to such premises to the extent any of the foregoing are executory
contracts or unexpired leases, unless any of the foregoing agreements previously
has been assumed or assumed and assigned by the Debtors.
(c) Insurance Policies. All of the Debtors' insurance policies and any
agreements, documents or instruments relating thereto, are treated as executory
contracts under the Plan. Notwithstanding the foregoing, distributions under the
Plan to any holder of an Insured Claim shall be in accordance with the treatment
provided under Article IV of the Plan. Nothing contained in this Section 5.1(c)
shall constitute or be deemed a waiver of any Cause of Action that the Debtors
9
may hold against any entity, including, without limitation, the insurer under
any of the Debtors' policies of insurance.
(d) Approval of Assumption, Assumption and Assignment or Rejection of
Executory Contracts and Unexpired Leases. Entry of the Confirmation Order shall,
subject to and upon the occurrence of the Effective Date, constitute (i) the
approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of
the assumption of the executory contracts and unexpired leases assumed pursuant
to Section 5.1(a) hereof, (ii) the extension of time, pursuant to section
365(d)(4) of the Bankruptcy Code, within which the Debtors may assume, assume
and assign or reject the unexpired leases specified in Section 5.1(a) hereof
through the date of entry of an order approving the assumption, assumption and
assignment or rejection of such unexpired leases and (iii) the approval,
pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the
rejection of the executory contracts and unexpired leases rejected pursuant to
Section 5.1(a) hereof.
(e) Cure of Defaults. Except as may otherwise be agreed to by the
parties, within 30 days after the Effective Date, the Reorganized Debtors shall
cure any and all undisputed defaults under any executory contract or unexpired
lease assumed by the Debtors pursuant to Section 5.1(a) hereof, in accordance
with section 365(b)(1) of the Bankruptcy Code. All disputed defaults that are
required to be cured shall be cured either within 30 days of the entry of a
Final Order determining the amount, if any, of the Reorganized Debtors'
liability with respect thereto, or as may otherwise be agreed to by the parties.
(f) Bar Date for Filing Proofs of Claim Relating to Executory Contracts
and Unexpired Leases Rejected Pursuant to the Plan. Claims arising out of the
rejection of an executory contract or unexpired lease pursuant to Section 5.1 of
the Plan must be filed with the Bankruptcy Court and served upon the Debtors or,
on and after the Effective Date, the Reorganized Debtors, by no later than 30
days after the later of (i) notice of entry of an order approving the rejection
of such executory contract or unexpired lease, (ii) notice of entry of the
Confirmation Order and (iii) notice of an amendment to Schedule 5.1(a)(x) or
5.1(a)(y). All such Claims not filed within such time will be forever barred
from assertion against the Debtors and their estates and the Reorganized Debtors
and their property.
(g) Assumed Indemnification Obligations. Entry of the Confirmation
Order shall, subject to and upon the occurrence of the Effective Date,
constitute the approval, pursuant to sections 365(a) and 1123(b)(2) of the
Bankruptcy Code, of the assumption of the Assumed Indemnification Obligations.
The Assumed Indemnification Obligations shall, in all respects, irrespective of
whether such obligations arise under contracts or executory contracts, survive
confirmation of the Plan, remain unaffected thereby, and not be discharged
irrespective of whether indemnification, defense, reimbursement or limitation is
owed in connection with an event occurring before, on or after the Commencement
Date.
(h) Compensation and Benefit Programs. Except as provided in Section
5.1(a) of the Plan, all savings plans, retirement plans, health care plans,
severance plans, performance-based incentive plans, retention plans, workers'
compensation programs and life, disability, directors and officers liability and
other insurance and similar plans are treated as executory contracts under the
Plan and shall, on the Effective Date, be deemed assumed by the Debtors in
accordance with sections 365(a) and 1123(b)(2) of the Bankruptcy Code.
5.2 Retiree Benefits. Payments, if any, due to any Person for the
purpose of providing or reimbursing payments for retired employees and their
spouses and dependents for medical, surgical, or hospital care benefits, or
benefits in the event of sickness, accident, disability, or death under any
plan, fund, or program (through the purchase of insurance or otherwise)
maintained or established in whole or in part by the Debtors prior to the
Commencement Date shall be continued for the duration of the period the Debtors
have obligated themselves to provide such benefits.
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ARTICLE VI
IMPLEMENTATION OF THE PLAN
6.1 General. On the Effective Date, the management, control and
operation of the Reorganized Debtors shall become the general responsibility of
the Boards of Directors of the Reorganized Debtors.
6.2 Boards of Directors of Reorganized Debtors. The members of the
Boards of Directors of the Debtors immediately prior to the Effective Date shall
serve as the initial members of the Boards of Directors of the Reorganized
Debtors on and after the Effective Date. Each of the members of such initial
Boards of Directors shall serve in accordance with the applicable Reorganized
Debtor Certificate of Incorporation or Reorganized Debtor By-laws, as the same
may be amended from time to time.
6.3 Officers of Reorganized Debtors. The officers of the Debtors
immediately prior to the Effective Date shall serve as the initial officers of
the Reorganized Debtors on and after the Effective Date. Such officers shall
serve in accordance with any employment agreement with the Reorganized Debtors
and applicable nonbankruptcy law.
6.4 By-laws and Certificates of Incorporation. The Reorganized Debtors
By-laws and the Reorganized Debtors Certificates of Incorporation shall contain
provisions necessary (a) to prohibit the issuance of nonvoting equity securities
as required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such certificates of incorporation and by-laws as permitted by
applicable law and (b) to effectuate the provisions of the Plan.
6.5 Cancellation of Certain Securities. On the Effective Date, the
promissory notes and any and all other instruments or documents evidencing any
Secured Bank Claim shall be deemed cancelled without further act or action under
any applicable agreement, law, regulation, order or rule and the obligations of
the Debtors under the Bank Credit Agreement shall be discharged.
6.6 Restructuring Transactions. On or as of the Effective Date, within
the sole and exclusive discretion of the Debtors, any or all of the Debtors may,
subject to the approval of the Banks, cause any or all of the Debtors to be
merged into one or more of the Debtors or dissolved, cause the transfer of
assets between and among the Debtors or engage in any other transactions in
furtherance of the Plan. Any such mergers, dissolutions or asset transfers shall
be effective as of the Effective Date pursuant to the Confirmation Order without
any further action by the stockholders or directors of any of the Debtors, the
Debtors in Possession or the Reorganized Debtors.
ARTICLE VII
EFFECT OF CONFIRMATION OF PLAN
7.1 Term of Bankruptcy Injunction or Stays. Unless otherwise provided,
all injunctions or stays provided for in the Chapter 11 Cases under section 105
or 362 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
7.2 Revesting of Assets.
(a) On the Effective Date, except as otherwise provided for in the
Plan, the property of the estates of the Debtors shall vest in the Reorganized
Debtors.
11
(b) From and after the Effective Date, the Reorganized Debtors may
operate their businesses, and may use, acquire and dispose of property free of
any restrictions imposed under the Bankruptcy Code.
(c) As of the Effective Date, all property of the Reorganized Debtors
shall be free and clear of all liens, claims and interests of holders of Claims
and Equity Interests, except as otherwise provided in the Plan.
7.3 Claims Extinguished. As of the Effective Date, any and all
avoidance claims accruing to the Debtors and Debtors in Possession under
sections 502(d), 544, 545, 547, 548, 549, 550 and 551 of the Bankruptcy Code and
then pending, shall be extinguished.
7.4 Discharge of Debtors. The rights afforded herein and the treatment
of all Claims and Equity Interests herein shall be in exchange for and in
complete satisfaction, discharge and release of Claims and Equity Interests of
any nature whatsoever, including any interest accrued on such Claims from and
after the Commencement Date, against the Debtors and the Debtors in Possession,
or any of their assets or properties. Except as otherwise provided herein, (a)
on the Effective Date, all such Claims against and Equity Interests in the
Debtors shall be satisfied, discharged and released in full and (b) all Persons
shall be precluded from asserting against the Reorganized Debtors, their
successors, or their assets or properties any other or further Claims or Equity
Interests based upon any act or omission, transaction or other activity of any
kind or nature that occurred prior to the Confirmation Date.
7.5 Injunction. Except as otherwise expressly provided in the Plan, the
Confirmation Order or a separate order of the Bankruptcy Court, all entities who
have held, hold or may hold Claims against or Equity Interests in the Debtors,
are permanently enjoined, on and after the Effective Date, from (a) commencing
or continuing in any manner any action or other proceeding of any kind with
respect to any such Claim or Equity Interest, (b) the enforcement, attachment,
collection or recovery by any manner or means of any judgment, award, decree or
order against the Debtors on account of any such Claim or Equity Interest, (c)
creating, perfecting or enforcing any encumbrance of any kind against the
Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest, (d) asserting any right of setoff,
subrogation or recoupment of any kind against any obligation due from the
Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest and (e) commencing or continuing in
any manner any action or other proceeding of any kind with respect to any claims
and Causes of Action which are extinguished, dismissed or released pursuant to
the Plan, including, without limitation, the claims extinguished pursuant to
Section 7.3 of the Plan and the Causes of Action released pursuant to Sections
10.4 and 10.5 of the Plan. Such injunction shall extend to successors of the
Debtors, including, without limitation, the Reorganized Debtors and their
properties and interests in property.
ARTICLE VIII
CONFIRMATION AND EFFECTIVENESS OF THE PLAN
8.1 Conditions Precedent to Confirmation. The Plan shall not be
confirmed by the Bankruptcy Court unless and until the following conditions
shall have been satisfied or waived pursuant to Section 8.4 of the Plan:
(a) The Class of holders of Secured Bank Claims (Class 3) shall have
voted to accept the Plan by the requisite statutory majorities provided in
section 1126(c) of the Bankruptcy Code;
(b) The class of Bank claims in the Sunbeam Corporation Plan shall have
voted to accept the Sunbeam Corporation Plan by the requisite statutory
majorities provided in section 1126(c) of the Bankruptcy Code;
12
(c) All exhibits to the Plan and the Sunbeam Corporation Plan,
including those contained in the Plan Supplement, shall be in form and substance
acceptable to the Banks;
(d) No default or event of default under the Postpetition Revolving
Credit and Guarantee Agreement shall have occurred and be continuing;
(e) No default or event of default under the postpetition receivables
program provided by GECC or the documents related thereto shall have occurred
and be continuing, the postpetition receivables program provided by GECC shall
be in full force and effect, and no reduction in the availability under the
postpetition receivables program provided by GECC shall have occurred;
(f) GECC shall have agreed to continue its postpetition receivables
program after the effectiveness of the Plan on terms acceptable to the Banks and
the Debtors, or another receivables financing source, acceptable to the Banks
and the Debtors, shall have agreed to provide receivables financing to the
Debtors after the effectiveness of the Plan on terms acceptable to the Banks and
the Debtors;
(g) No material adverse effect on the business, assets, operations,
property, condition (financial or otherwise) of Sunbeam Corporation or any of
its subsidiaries (other than inactive subsidiaries) shall have occurred and be
continuing;
(h) No material unanticipated claims shall have been filed or asserted
in the Debtors' Chapter 11 Cases or the Sunbeam Corporation chapter 11 case; and
(i) One or more financial institutions acceptable to the Banks and the
Debtors shall have agreed to provide a working capital credit facility to
Sunbeam Corporation and the Debtors after the effectiveness of the Plan and the
Sunbeam Corporation Plan on terms acceptable to the Banks and the Debtors.
8.2 Conditions Precedent to Effectiveness. The Plan shall not become
effective unless and until the following conditions shall have been satisfied or
waived pursuant to Section 8.4 of the Plan:
(a) The order confirming the Sunbeam Corporation Plan, in form and
substance acceptable to the Debtors and the Banks, shall have been signed by the
Bankruptcy Court on or before June 15, 2001, and shall have become a Final
Order;
(b) the Confirmation Order, in form and substance acceptable to the
Debtors and the Banks, shall have been signed by the Bankruptcy Court on or
before June 15, 2001, and shall have become a Final Order;
(c) the Effective Date shall have occurred on or before July 1, 2001;
(d) all actions, documents and agreements necessary to implement the
Plan shall have been effected or executed;
(e) the Debtors shall have received all authorizations, consents,
regulatory approvals, rulings, letters, no-action letters, opinions or documents
that are determined by the Debtors to be necessary to implement the Plan; and
(f) each of the Reorganized Debtors Certificates of Incorporation and
the Reorganized Debtors By-laws, in form and substance acceptable to the Debtors
and the Banks, shall have been effected or executed.
13
8.3 Effect of Failure of Conditions. In the event that one or more of
the conditions specified in Section 8.1 of the Plan have not occurred on or
before one year after the Confirmation Date, (a) the Confirmation Order shall be
vacated, (b) no distributions under the Plan shall be made, (c) the Debtors and
all holders of Claims and Equity Interests shall be restored to the status quo
ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date never occurred and (d) the Debtors' obligations with respect
to Claims and Equity Interests shall remain unchanged and nothing contained
herein shall constitute or be deemed a waiver or release of any Claims or Equity
Interests by or against the Debtors or any other Person or Entity or to
prejudice in any manner the rights of the Debtors or any Person or Entity in any
further proceedings involving the Debtors.
8.4 Waiver of Conditions. The Debtors may waive, with the consent of
the Banks, by a writing signed by an authorized representative of the Debtors
and subsequently filed with the Bankruptcy Court, one or more of the conditions
precedent set forth in Sections 8.1 and 8.2 of the Plan (other than the
conditions set forth in Section 8.1(a), 8.1(b), 8.2(a) (except as to timing) and
8.2(b) (except as to timing)).
ARTICLE IX
RETENTION OF JURISDICTION
The Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of, and related to, the Chapter 11 Cases and the Plan pursuant to,
and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
(a) To hear and determine pending applications for the assumption or
rejection of executory contracts or unexpired leases, if any are pending, and
the allowance of cure amounts and Claims resulting therefrom;
(b) To hear and determine any and all adversary proceedings,
applications and contested matters;
(c) To hear and determine any objections to Administrative Expense
Claims or Claims;
(d) To enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified or
vacated;
(e) To issue such orders in aid of execution and consummation of the
Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(f) To consider any amendments to or modifications of the Plan, to cure
any defect or omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including, without limitation, the Confirmation Order;
(g) To hear and determine all applications for compensation and
reimbursement of expenses of professionals under sections 330, 331 and 503(b) of
the Bankruptcy Code;
(h) To hear and determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan;
(i) To recover all assets of the Debtors and property of the Debtors'
estates, wherever located;
(j) To hear and determine matters concerning state, local and federal
taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code;
(k) To hear any other matter not inconsistent with the Bankruptcy Code;
and
(l) To enter a final decree closing the Chapter 11 Cases.
14
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Effectuating Documents and Further Transactions. The Debtors and
Reorganized Debtors are authorized to execute, deliver, file or record such
contracts, instruments, releases, indentures and other agreements or documents
and take such actions as may be necessary or appropriate to effectuate and
further evidence the terms and conditions of the Plan and any securities issued
pursuant to the Plan.
10.2 Corporate Action. On the Effective Date, all matters provided for
under the Plan that would otherwise require approval of the stockholders or
directors of the Debtors or Reorganized Debtors, including, without limitation,
the authorization to issue or cause to be the New Bank Guarantee and Security
Agreement, the effectiveness of the Reorganized Debtors Certificates of
Incorporation, the Reorganized Debtors By-laws, and the election or appointment,
as the case may be, of directors and officers of the Reorganized Debtors
pursuant to the Plan, shall be deemed to have occurred and shall be in effect
from and after the Effective Date pursuant to the applicable general corporation
law of the states in which the Debtors and Reorganized Debtors are incorporated,
without any requirement of further action by the stockholders or directors of
the Debtors or Reorganized Debtors. On the Effective Date, or as soon thereafter
as is practicable, the Reorganized Debtors shall, if required, file their
amended certificates of incorporation with the Secretaries of State of the
states in which they are incorporated, to the extent required by the applicable
general corporation law of such states.
10.3 Exemption from Transfer Taxes. Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of notes or issuance of debt
or equity securities under the Plan, the creation of any mortgage, deed of trust
or other security interest, the making or assignment of any lease or sublease,
or the making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with the Plan, including, without limitation,
any merger agreements or agreements of consolidation, deeds, bills of sale or
assignments executed in connection with any of the transactions contemplated
under the Plan, shall not be subject to any stamp, real estate transfer,
mortgage recording or other similar tax. All sale transactions consummated by
the Debtors and approved by the Bankruptcy Court on and after the Commencement
Date through and including the Effective Date, including, without limitation,
the sales, if any, by the Debtors of owned property or assets pursuant to
section 363(b) of the Bankruptcy Code and the assumptions, assignments and
sales, if any, by the Debtors of unexpired leases of non-residential real
property pursuant to section 365(a) of the Bankruptcy Code, shall be deemed to
have been made under, in furtherance of, or in connection with the Plan and,
therefore, shall not be subject to any stamp, real estate transfer, mortgage
recording or other similar tax.
10.4 Releases of Releasees. As of the Effective Date, the Debtors and
the Debtors in Possession and each holder of a Claim against or Equity Interest
in the Debtors or Debtors in Possession release all of the Releasees from any
and all Causes of Action held by, assertable on behalf of or derivative from the
Debtors or the Debtors in Possession or such holder, in any way relating to the
Debtors, the Debtors in Possession, the Chapter 11 Cases, the Plan, negotiations
regarding or concerning the Plan and the ownership, management and operation of
the Debtors; provided, however, that the foregoing shall not operate as a waiver
of or release from any Causes of Action arising out of any express contractual
obligation owing by any former director, officer or employee to the Debtors or
any reimbursement obligation of any former director, officer or employee with
respect to a loan or advance made by the Debtors to such former director,
officer or employee.
10.5 Limited Release by Releasees. Except as otherwise provided under
the Plan, as of the Effective Date, each of the Releasees, in any capacity,
generally releases the Debtors and the Debtors in Possession, in each case in
15
any capacity, from any and all Causes of Action held by, assertable on behalf of
or derivative from such Releasee, in any way relating to the Debtors, the
Debtors in Possession, the Chapter 11 Cases, the Plan, negotiations regarding or
concerning the Plan and the ownership, management and operation of the Debtors.
10.6 Exculpation. None of the Debtors, the Reorganized Debtors, the
Banks, the Post-Petition Banks or GECC or any of their respective members,
officers, directors, employees, advisors, professionals or agents shall have or
incur any liability to any holder of a Claim or Equity Interest for any act or
omission in connection with, related to, or arising out of, the Chapter 11
Cases, negotiations regarding or concerning the Plan, the pursuit of
confirmation of the Plan, the consummation of the Plan or the administration of
the Plan or the property to be distributed under the Plan, except for willful
misconduct or gross negligence, and, in all respects, the Debtors, Reorganized
Debtors, the Banks, the Post-Petition Banks and GECC and each of their
respective members, officers, directors, employees, advisors, professionals and
agents shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan.
10.7 Post-Effective Date Fees and Expenses. From and after the
Effective Date, the Reorganized Debtors shall, in the ordinary course of
business and without the necessity for any approval by the Bankruptcy Court, pay
the reasonable fees and expenses of professional persons thereafter incurred by
the Reorganized Debtors, including, without limitation, those fees and expenses
incurred in connection with the implementation and consummation of the Plan.
10.8 Payment of Statutory Fees. All fees payable pursuant to section
1930 of title 28 of the United States Code, as determined by the Bankruptcy
Court at the Confirmation Hearing, shall be paid on the Effective Date.
10.9 Amendment or Modification of the Plan. Alterations, amendments or
modifications of or to the Plan may be proposed in writing by the Debtors at any
time prior to the Confirmation Date, provided that the Plan, as altered, amended
or modified, satisfies the conditions of sections 1122 and 1123 of the
Bankruptcy Code, and the Debtors shall have complied with section 1125 of the
Bankruptcy Code. Subject to obtaining the approval of the Banks, the Plan may be
altered, amended or modified by the Debtors at any time after the Confirmation
Date and before substantial consummation, provided that the Plan, as altered,
amended or modified, satisfies the requirements of sections 1122 and 1123 of the
Bankruptcy Code and the Bankruptcy Court, after notice and a hearing, confirms
the Plan, as altered, amended or modified, under section 1129 of the Bankruptcy
Code and the circumstances warrant such alterations, amendments or
modifications. A holder of a Claim that has accepted the Plan shall be deemed to
have accepted the Plan, as altered, amended or modified, if the proposed
alteration, amendment or modification does not materially and adversely change
the treatment of the Claim of such holder.
10.10 Severability. In the event that the Bankruptcy Court determines
that any provision in the Plan is invalid, void or unenforceable, such provision
shall be invalid, void or unenforceable with respect to the holder or holders of
such Claims or Equity Interests as to which the provision is determined to be
invalid, void or unenforceable. The invalidity, voidness or unenforceability of
any such provision shall in no way limit or affect the enforceability and
operative effect of any other provision of the Plan.
10.11 Revocation or Withdrawal of the Plan. Subject to obtaining the
approval of the Banks, the Debtors reserve the right to revoke or withdraw the
Plan prior to the Confirmation Date. If the Debtors revoke or withdraw the Plan
prior to the Confirmation Date, then the Plan shall be deemed null and void. In
such event, nothing contained herein shall constitute or be deemed a waiver or
release of any claims by or against the Debtors or any other Person or Entity or
to prejudice in any manner the rights of the Debtors or any Person or Entity in
any further proceedings involving the Debtors.
16
10.12 Binding Effect. The Plan shall be binding upon and inure to the
benefit of the Debtors, the holders of Claims and Equity Interests and their
respective successors and assigns, including, without limitation, the
Reorganized Debtors.
10.13 Notices. All notices, requests and demands to or upon the Debtors
or, on and after the Effective Date, the Reorganized Debtors, to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when actually delivered or, in the case
of notice by facsimile transmission, when received and telephonically confirmed,
addressed as follows:
If to the Debtors or Reorganized Debtors:
Sunbeam Products, Inc.
2381 Executive Center Road
Boca Raton, Florida 33431
Attn: General Counsel
Telephone: (561) 912-4438
Facsimile: (561) 912-4612
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue....
New York, New York 10153
Attn: Lori R. Fife, Esq.
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
If to the Banks:
Wachtell, Lipton, Rosen & Katz
51 West 52d Street
New York, New York 10019
Attn: Chaim J. Fortgang, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Steven M. Fuhrman, Esq.
10.14 Governing Law. Except to the extent the Bankruptcy Code,
Bankruptcy Rules or other federal law is applicable, or to the extent an exhibit
to the Plan provides otherwise, the rights and obligations arising under this
Plan shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York, without giving effect to the principles of
conflicts of law of such jurisdiction.
10.15 Withholding and Reporting Requirements. In connection with the
consummation of the Plan, the Debtors or Reorganized Debtors, as the case may
be, shall comply with all withholding and reporting requirements imposed by any
federal, state, local or foreign taxing authority and all distributions
hereunder shall be subject to any such withholding and reporting requirements.
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10.16 Plan Supplement. The Reorganized Debtors Certificates of
Incorporation, the Reorganized Debtors By-laws, the New Bank Guarantee and
Security Agreement and Schedules 5.1(a)(x) and 5.1(a)(y) referred to in Section
5.1 of the Plan, shall be contained in the Plan Supplement and filed with the
Clerk of the Bankruptcy Court at least 10 days prior to the last day upon which
holders of Claims may vote to accept or reject the Plan. Upon its filing with
the Bankruptcy Court, the Plan Supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during normal court hours. Holders of Claims or
Equity Interests may obtain a copy of the Plan Supplement upon written request
to the Debtors in accordance with Section 10.14 of the Plan.
10.17 Sections 1125 and 1126 of the Bankruptcy Code. As of and subject
to the occurrence of the Confirmation Date, (i) the Debtors shall be deemed to
have solicited acceptances of the Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, including, without limitation
section 1125(a) of the Bankruptcy Code, and any applicable nonbankruptcy law,
rule or regulation governing the adequacy of disclosure in connection with such
solicitation and (ii) the Debtors, the Banks and each of their respective
affiliates, agents, directors, officers, employees, advisors and attorneys)
shall be deemed to have participated in good faith and in compliance with the
applicable provisions of the Bankruptcy Code in the offer and issuance of any
securities under the Plan, and therefore are not, and on account of such offer,
issuance and solicitation will not be, liable at any time for any violation of
any applicable law, rule or regulation governing the solicitation of acceptances
or rejections of the Plan or the offer and issuance of any securities under the
Plan.
10.18 Allocation of Plan Distributions. All distributions in respect of
Claims will be allocated first to the original principal amount of such Claims
(as determined for federal income tax purposes), with any excess allocated to
the remaining portion of such Claims.
10.19 Headings. Headings are used in the Plan for convenience and
reference only, and shall not constitute a part of the Plan for any other
purpose.
10.20 Exhibits/Schedules. All exhibits and schedules to the Plan,
including the Plan Supplement, are incorporated into and are a part of the Plan
as if set forth in full herein.
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10.21 Filing of Additional Documents. On or before substantial
consummation of the Plan, the Debtors shall file with the Bankruptcy Court such
agreements and other documents as may be necessary or appropriate to effectuate
and further evidence the terms and conditions of the Plan.
Dated: New York, New York
February 6, 2001
AI REALTY MARKETING OF NEW YORK, INC.
BEACON EXPORTS, INC.
BRK BRANDS, INC.
CC OUTLET, INC.
CMO, INC.
COLEMAN ARGENTINA, INC.
THE COLEMAN COMPANY, INC.
COLEMAN POWERMATE, INC.
COLEMAN PUERTO RICO, INC.
COLEMAN VENTURE CAPITAL, INC.
COLEMAN WORLDWIDE CORPORATION
FAMILY GARD, INC.
FIRST ALERT, INC.
GHI I. INC.
GENERAL ARCHERY INDUSTRIES, INC.
JGK, INC.
KAIMONA, INC.
KANSAS ACQUISITION CORP.
L.A. SERVICES, INC.
NIPPON COLEMAN, INC.
PACKS & TRAVEL CORPORATION
PEARSON HOLDINGS, INCORPORATED
RIVER VIEW CORPORATION OF BARLING, INC.
SI II, INC.
SIERRA CORPORATION OF FORT SMITH, INC.
SUNBEAM HEALTH & SAFETY COMPANY
SUNBEAM LATIN AMERICA, LLC
SUNBEAM PRODUCTS, INC.
SUNBEAM SERVICES, INC.
SURVIVAL GEAR, INC.
THALIA PRODUCTS, INC.
THL-FA IP CORP.
VERO DUNES VENTURER, INC.
WOODCRAFT EQUIPMENT COMPANY
By: /s/ Jerry W. Levin
____________________________________
Name: Jerry W. Levin
Title: Chairman and Chief Executive Officer
(Sunbeam Corporation)
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