Exhibit 99.1
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. :
:
(Burlington Industries, Inc.) : (Case No. 01-11282 (RJN))
(B.I. Transportation, Inc.) : (Case No. 01-11283 (RJN))
(BH/M-II Inc.) : (Case No. 01-11284 (RJN))
(BI Properties Inc.) : (Case No. 01-11285 (RJN))
(BI Properties I Inc.) : (Case No. 01-11286 (RJN))
(BH Mexico Holdings I, Inc.) : (Case No. 01-11287 (RJN))
(BH Mexico Holdings II, Inc.) : (Case No. 01-11288 (RJN))
(BH Mexico Laundry Holding Co.) : (Case No. 01-11289 (RJN))
(BH Mexico Yarns Holding Co.) : (Case No. 01-11290 (RJN))
(Burlington Apparel Services Company) : (Case No. 01-11291 (RJN))
(Burlington Fabrics Inc.) : (Case No. 01-11292 (RJN))
(Burlington Fabritex USA, Inc.) : (Case No. 01-11293 (RJN))
(Burlington Industries I, LLC) : (Case No. 01-11294 (RJN))
(Burlington Industries II, LLC) : (Case No. 01-11295 (RJN))
(Burlington Industries III, LLC) : (Case No. 01-11296 (RJN))
(Burlington Industries IV, LLC) : (Case No. 01-11297 (RJN))
(Burlington Industries V, LLC) : (Case No. 01-11298 (RJN))
(Burlington International Services Company) : (Case No. 01-11299 (RJN))
(Burlington Investment Inc.) : (Case No. 01-11300 (RJN))
(Burlington Investment II Inc.) : (Case No. 01-11301 (RJN))
(Burlington Mills Corporation) : (Case No. 01-11302 (RJN))
(Burlington Mills, Inc.) : (Case No. 01-11303 (RJN))
(Burlington Worldwide Inc.) : (Case No. 01-11304 (RJN))
(Burlington Worsteds Inc.) : (Case No. 01-11305 (RJN))
(Distributex Inc.) : (Case No. 01-11306 (RJN))
FIRST AMENDED 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 DEBTORS IN POSSESSION
August 1, 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 Claims Reserve" ............................... 1
5. "Administrative Trade Claim" .................................. 1
6. "Allowed Claim" ............................................... 2
7. "Allowed . . . Claim" ......................................... 2
8. "Assumed Contracts" ........................................... 2
9. "Assumed Liabilities" ......................................... 2
10. "Auction" ..................................................... 2
11. "BII Distribution Trust" ...................................... 2
12. "BII Distribution Trust Agreement" ............................ 2
13. "Ballot" ...................................................... 2
14. "Bankruptcy Code" ............................................. 2
15. "Bankruptcy Court" ............................................ 2
16. "Bankruptcy Rules" ............................................ 2
17. "Bar Date" .................................................... 2
18. "Bar Date Order" .............................................. 2
19. "Bidding Procedures" .......................................... 3
20. "Burlington" .................................................. 3
21. "Burlington Fabrics" .......................................... 3
22. "Burlington Fabrics Irrevocable Trust" ........................ 3
23. "Burlington Fabrics Trust Agreement" .......................... 3
24. "Burlington Fabrics Trustee" .................................. 3
25. "Burlington Investment" ....................................... 3
26. "Burlington Subsidiary Debtors" ............................... 3
27. "Business" .................................................... 3
28. "Business Day" ................................................ 3
29. "Buyer" ....................................................... 3
30. "Cash Investment Yield" ....................................... 3
31. "Cash Management Order" ....................................... 3
32. "Claim" ....................................................... 3
33. "Claims Objection Bar Date" ................................... 3
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TABLE OF CONTENTS
(continued)
Page
34. "Class" ............................................................ 3
35. "Closing" and "Closing Date" ....................................... 4
36. "Confirmation" ..................................................... 4
37. "Confirmation Date" ................................................ 4
38. "Confirmation Hearing" ............................................. 4
39. "Confirmation Order" ............................................... 4
40. "Creditors' Committee" ............................................. 4
41. "Cure Amount Claim" ................................................ 4
42. "Debtors" .......................................................... 4
43. "DIP Credit Agreement" ............................................. 4
44. "DIP Financing Order" .............................................. 4
45. "DIP Lenders" ...................................................... 4
46. "Disbursing Agent" ................................................. 4
47. "Disclosure Statement" ............................................. 4
48. "Disputed Administrative Claim" .................................... 4
49. "Disputed Claim" ................................................... 5
50. "Disputed Insured Claim" and "Disputed Uninsured Claim" ............ 5
51. "Distribution Record Date" ......................................... 5
52. "Distribution Trust Assets" ........................................ 5
53. "Distribution Trust Expenses" ...................................... 5
54. "Distribution Trust Representative" ................................ 5
55. "Distributions" .................................................... 5
56. "Document Website" ................................................. 5
57. "Effective Date" ................................................... 5
58. "Emergence Bonus" .................................................. 5
59. "ERISA" ............................................................ 6
60. "Escrow Expenses" .................................................. 6
61. "Estate" ........................................................... 6
62. "Excluded Assets" .................................................. 6
63. "Excluded Balance Sheet Assets" .................................... 6
64. "Executory Contract and Unexpired Lease" ........................... 6
65. "Face Amount" ...................................................... 6
66. "Fee Auditor" ...................................................... 6
67. "Fee Claim" ........................................................ 6
68. "Fee Order" ........................................................ 6
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TABLE OF CONTENTS
(continued)
Page
69. "File", "Filed" or "Filing" ....................................... 7
70. "Final Order" ..................................................... 7
71. "Indenture Trustee" ............................................... 7
72. "Insured Claim" ................................................... 7
73. "Intercompany Claim" .............................................. 7
74. "Interest" ........................................................ 7
75. "IRS" ............................................................. 7
76. "JPMorgan Chase Bank" ............................................. 7
77. "KERP" ............................................................ 7
78. "KERP Participant" ................................................ 7
79. "KERP Payments" ................................................... 7
80. "Lees Business" ................................................... 7
81. "Liabilities" ..................................................... 7
82. "Mohawk" .......................................................... 7
83. "New Common Stock" ................................................ 8
84. "New Subsidiary Equity Interests" ................................. 8
85. "Old Common Stock" ................................................ 8
86. "Old Nonvoting Common Stock" ...................................... 8
87. "Old Senior Note Claim" ........................................... 8
88. "Old Senior Notes" ................................................ 8
89. "Old Subsidiary Equity Interests" ................................. 8
90. "Ordinary Course Professionals Order" ............................. 8
91. "PBGC" ............................................................ 8
92. "Parent" .......................................................... 8
93. "Pension Plan" .................................................... 8
94. "Petition Date" ................................................... 8
95. "Plan" ............................................................ 8
96. "Plan Supplement" ................................................. 8
97. "Prepetition Credit Facility" ..................................... 8
98. "Prepetition Indenture" ........................................... 8
99. "Prepetition Lenders" ............................................. 9
100. "Priority Claim" .................................................. 9
101. "Priority Tax Claim" .............................................. 9
102. "Professional" .................................................... 9
103. "Pro Rata" ........................................................ 9
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(continued)
Page
104. "Purchase Price" .............................................. 9
105. "Purchased Assets" ............................................ 9
106. "Quarterly Distribution Date" ................................. 9
107. "Real Property Executory Contract and Unexpired Lease" ........ 9
108. "Recovery Actions" ............................................ 9
109. "Reinstated" or "Reinstatement" ............................... 9
110. "Released Parties" ............................................ 10
111. "Remaining Proceeds" .......................................... 10
112. "Reorganization Case" ......................................... 10
113. "Reorganized . . ." ........................................... 10
114. "Reorganized Purchased Debtors" ............................... 10
115. "Restructuring Transactions" .................................. 10
116. "Sale Proceeds" ............................................... 10
117. "Schedules" ................................................... 10
118. "Secondary Liability Claim" ................................... 10
119. "Secured Claim" ............................................... 10
120. "Stipulation of Amount and Nature of Claim" ................... 11
121. "Sub" ......................................................... 11
122. "Tax" ......................................................... 11
123. "Third Party Disbursing Agent" ................................ 11
124. "Tort Claim" .................................................. 11
125. "Trade Claim" ................................................. 11
126. "Uninsured Claim" ............................................. 11
127. "Unsecured Claim" ............................................. 11
128. "Unsecured Claims Reserve" .................................... 11
129. "Voting Deadline" ............................................. 11
130. "WLR Purchase Agreement" ...................................... 11
131. "Working Capital Amount Due" .................................. 11
B. Rules of Interpretation and Computation of Time .................... 11
1. Rules of Interpretation ....................................... 11
2. Computation of Time ........................................... 12
ARTICLE II. CLASSES OF CLAIMS AND INTERESTS .................................... 12
A. Unimpaired Classes of Claims ....................................... 12
1. Class 1 (Unsecured Priority Claims) ........................... 12
2. Class 2 (Other Secured Claims) ................................ 12
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(continued)
Page
B. Impaired Classes of Claims and Interests ........................................ 12
1. Class 3 (Prepetition Bank Claims) ......................................... 12
2. Class 4 (General Unsecured Claims) ........................................ 12
3. Class 5 (Convenience Claims) .............................................. 12
4. Class 6 (Penalty Claims) .................................................. 13
5. Class 7 (Intercompany Claims) ............................................. 13
6. Class 8 (Equity Interests) ................................................ 13
ARTICLE III. TREATMENT OF CLAIMS AND INTERESTS ............................................... 13
A. Unclassified Claims ............................................................. 13
1. Payment of Administrative Claims .......................................... 13
a. Administrative Claims in General ..................................... 13
b. Statutory Fees ....................................................... 13
c. Liabilities to Be Assumed by the Buyer or
Reorganized Purchased Debtors ........................................ 13
d. Claims Under the DIP Credit Agreement ................................ 14
e. Bar Dates for Administrative Claims .................................. 14
i. General Bar Date Provisions .................................... 14
ii. Bar Dates for Certain Administrative Claims .................... 14
A. Professional Compensation ................................. 14
B. Liabilities to Be Assumed by the Buyer or
Reorganized Purchased Debtors ............................. 14
C. Claims Under the DIP Credit Agreement ..................... 15
2. Payment of Priority Tax Claims ............................................ 15
a. Priority Tax Claims .................................................. 15
b. Other Provisions Concerning Treatment of Priority Tax Claims ......... 15
B. Unimpaired Classes of Claims .................................................... 15
1. Class 1 Claims (Unsecured Priority Claims) ................................ 15
2. Class 2 Claims (Other Secured Claims) ..................................... 15
C. Impaired Classes of Claims and Interests ........................................ 15
1. Class 3 Claims (Prepetition Bank Claims) .................................. 15
2. Class 4 Claims (General Unsecured Claims) ................................. 16
3. Class 5 Claims (Convenience Claims) ....................................... 16
4. Class 6 Claims (Penalty Claims) ........................................... 16
5. Class 7 Claims (Intercompany Claims) ...................................... 16
6. Class 8 Claims (Equity Interests) ......................................... 16
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(continued)
Page
D. Special Provisions Regarding the Treatment of Allowed Secondary
Liability Claims .................................................................. 16
E. Special Provisions Regarding Allowance and Payment of KERP Payments
and Emergence Bonus ............................................................... 16
F. Disallowance of Claims of Parties Holding Property Recoverable
Pursuant to a Recovery Action ..................................................... 16
ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN .......................................... 17
A. Continued Corporate Existence and Vesting of Assets ............................... 17
B. Restructuring Transactions ........................................................ 17
1. Restructuring Transactions Generally ......................................... 17
2. Forms of Restructuring Transactions .......................................... 18
3. Implementation of WLR Purchase Agreement ..................................... 18
4. Issuance of New Common Stock ................................................. 18
5. Issuance of New Subsidiary Equity Interests .................................. 18
6. BII Distribution Trust ....................................................... 19
a. BII Distribution Trust .................................................. 19
b. Distribution Trust Representative ....................................... 19
c. Fees and Expenses of the BII Distribution Trust ......................... 19
d. Reports to be Filed by the BII Distribution Trust ....................... 19
e. Expenses for Professionals of the BII Distribution Trust ................ 20
f. Indemnification ......................................................... 20
g. Tax Treatment ........................................................... 20
7. Transfer of Assets from the Burlington Fabrics Irrevocable Trust ............. 20
C. Corporate Governance, Directors and Officers, Employment-Related
Agreements and Compensation Programs .............................................. 21
1. Certificates of Incorporation and By-Laws of Reorganized Debtors ............. 21
2. Directors and Officers of Reorganized Debtors ................................ 21
3. New Employment, Retirement, Indemnification and Other Related
Agreements and Incentive Compensation Programs ............................... 22
4. Corporate Action ............................................................. 22
D. Preservation of Recovery Actions; Settlement of Claims and Releases ............... 22
1. Preservation of Recovery Actions ............................................. 22
2. Comprehensive Settlement of Claims and Controversies ......................... 22
3. Releases ..................................................................... 23
a. General Releases of Debtors and Reorganized Debtors ..................... 23
b. General Releases by Debtors and Reorganized Debtors ..................... 23
c. General Releases by Holders of Claims or Interests ...................... 23
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(continued)
Page
d. Injunction Related to Releases ..................................... 23
E. Continuation or Termination of Certain Employee Benefits ..................... 23
1. Employee Benefits ....................................................... 23
F. Cancellation and Surrender of Instruments, Securities and Other
Documentation ................................................................ 24
G. Release of Liens ............................................................. 24
H. Effectuating Documents; Further Transactions; Exemption from Certain
Transfer Taxes ............................................................... 24
ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES ..................... 25
A. Executory Contracts and Unexpired Leases to Be Assumed or Assumed and
Assigned ..................................................................... 25
1. Assumption and Assignment Generally ..................................... 25
2. Assumptions and Assignments of Real Property Executory Contracts
and Unexpired Leases .................................................... 25
3. Assignments Related to the Restructuring Transactions ................... 25
4. Approval of Assumptions and Assignments ................................. 25
B. Payments Related to the Assumption of Executory Contracts and
Unexpired Leases ............................................................. 26
C. Executory Contracts and Unexpired Leases to Be Rejected ...................... 26
D. Bar Date for Rejection Damages ............................................... 26
E. Special Executory Contract and Unexpired Lease Issues ........................ 27
1. Obligations to Indemnify Directors, Officers and Employees .............. 27
2. Reinstatement of Allowed Secondary Liability Claims Arising from
or Related to Executory Contracts or Unexpired Leases Assumed by
the Debtors ............................................................. 27
F. Cotracts and Leases Entered Into After the Petition Date ..................... 27
ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS ........................................ 27
A. Distributions for Claims Allowed as of the Effective Date .................... 27
B. Method of Distributions to Holders of Claims Assumed by the Buyer or
Reorganized Purchased Debtors ................................................ 28
C. Method of Distributions to Holders of Other Claims ........................... 28
D. Compensation and Reimbursement for Services Related to Distributions ......... 28
E. Provisions Governing the Claims Reserves ..................................... 28
1. Funding of Claims Reserves .............................................. 28
a. Unsecured Claims Reserve ........................................... 28
b. Administrative Claims Reserve ...................................... 28
2. Property Held in Unsecured Claims Reserve ............................... 29
a. Investment ......................................................... 29
b. Recourse ........................................................... 29
F. Establishment of Other Claims Reserves ....................................... 29
G. Delivery of Distributions and Undeliverable or Unclaimed Distributions ....... 29
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TABLE OF CONTENTS
(continued)
Page
1. Delivery of Distributions ................................................... 29
a. Generally ............................................................... 29
b. Special Provisions for Distributions to Holders of Old Senior Note
Claims .................................................................. 29
2. Undeliverable Distributions Held by Disbursing Agents ....................... 29
a. Holding and Investment of Undeliverable Distributions ................... 29
b. After Distributions Become Deliverable .................................. 30
c. Failure to Claim Undeliverable Distributions ............................ 30
H. Distribution Record Date ........................................................ 30
I. Means of Cash Payments .......................................................... 30
J. Timing and Calculation of Amounts to Be Distributed ............................. 31
1. Allowed Claims .............................................................. 31
2. De Minimis Distributions .................................................... 31
3. Compliance with Tax Requirements ............................................ 31
K. Surrender of Cancelled Instruments or Securities ................................ 32
1. Tender of Old Senior Notes .................................................. 32
2. Lost, Stolen, Mutilated or Destroyed Old Senior Notes ....................... 32
3. Failure to Surrender Old Senior Notes ....................................... 32
ARTICLE VII. PROCEDURES FOR RESOLVING DISPUTED CLAIMS ........................................ 32
A. Prosecution of Objections to Claims ............................................. 32
1. Objections to Claims ........................................................ 32
2. Authority to Prosecute Objections ........................................... 33
B. Treatment of Disputed Claims .................................................... 33
C. Distributions on Account of Disputed Claims Once They Are Allowed ............... 33
ARTICLE VIII. SUBSTANTIVE CONSOLIDATION OF THE DEBTORS ........................................ 33
A. Substantive Consolidation ....................................................... 33
B. Order Granting Substantive Consolidation ........................................ 34
ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN ................ 34
A. Conditions to Confirmation ...................................................... 34
B. Conditions to the Effective Date ................................................ 34
C. Waiver of Conditions to the Confirmation or Effective Date ...................... 35
D. Effect of Nonoccurrence of Conditions to the Effective Date ..................... 35
ARTICLE X. CRAMDOWN ........................................................................ 35
ARTICLE XI. DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS ..................... 35
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(continued)
Page
A. Discharge of Claims and Termination of Interests ................................ 35
B. Injunctions ..................................................................... 36
C. Termination of Subordination Rights and Settlement of Related Claims
and Controversies ............................................................... 36
ARTICLE XII. RETENTION OF JURISDICTION ....................................................... 37
ARTICLE XIII. MISCELLANEOUS PROVISIONS ........................................................ 38
A. Dissolution of the Creditors' Committee ......................................... 38
B. Limitation of Liability ......................................................... 38
C. Modification of the Plan and Exhibits ........................................... 39
D. Term of Injunctions or Stays .................................................... 39
E. Revocation of the Plan .......................................................... 39
F. Severability of Plan Provisions ................................................. 39
G. Successors and Assigns .......................................................... 39
H. The Plan Supplement ............................................................. 39
I. Relationship Among Plan, Disclosure Statement and Certain Other Documents ....... 40
J. Service of Certain Plan Exhibits, Disclosure Statement Exhibits and Plan
Supplement ...................................................................... 40
K. Service of Documents ............................................................ 40
1. Debtors and Reorganized Debtors ............................................. 40
2. Creditors' Committee ........................................................ 41
3. DIP Lenders ................................................................. 41
4. Prepetition Lenders ......................................................... 41
5. Buyer ....................................................................... 42
6. United States Trustee ....................................................... 42
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TABLE OF EXHIBITS/1/
Exhibit I.A.130 WLR Purchase Agreement
Exhibit III.E 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 Executory Contracts and Unexpired Leases to Be
Assumed or Assumed and Assigned
Exhibit V.C Nonexclusive Schedule of Executory Contracts and Unexpired
Leases to Be Rejected
______________
/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 first amended 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. (S) 1129. Reference is made to the
Debtors' first amended 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 and the DIP Financing Order; (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. (S)(S)
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 and KERP Payments.
4. "Administrative Claims Reserve" means the reserve established pursuant
to Section VI.E.1 for Disputed Administrative Claims (other than those to be
assumed by the Buyer or Reorganized Purchased Debtors, as applicable, pursuant
to Sections III.A.1.c and III.A.1.d), which reserve will be maintained in trust
for holders of Allowed Administrative Claims (other than those to be assumed by
the Buyer or Reorganized Purchased Debtors, as applicable, pursuant to Sections
III.A.1.c and III.A.1.d).
5. "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.
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6. "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;
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.
7. "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.
8. "Assumed Contracts" has the meaning given to it in the WLR Purchase
Agreement.
9. "Assumed Liabilities" has the meaning given to it in the WLR Purchase
Agreement.
10. "Auction" means the auction that took place on July 28, 2003, as
contemplated by the Bidding Procedures, at which the Buyer was selected as the
highest and best bidder at the conclusion.
11. "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.
12. "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.
13. "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.
14. "Bankruptcy Code" means title 11 of the United States Code, 11 U.S.C.
(S)(S) 101-1330, as now in effect or hereafter amended with retroactive
applicability to these chapter 11 cases.
15. "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. (S) 157, the bankruptcy unit of such District Court.
16. "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.
17. "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.
18. "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.
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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
March 5, 2003 and later amended by consent order on April 4, 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 Fabrics" means Burlington Fabrics, Inc., a Delaware
corporation and one of the Debtors.
22. "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.
23. "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.
24. "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.
25. "Burlington Investment" means Burlington Investment Inc., a Delaware
corporation and one of the Debtors.
26. "Burlington Subsidiary Debtors" means, individually or collectively, a
Debtor or Debtors other than Burlington.
27. "Business" has the meaning given to it in the WLR Purchase Agreement.
28. "Business Day" means any day, other than a Saturday, Sunday or "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
29. "Buyer" means, individually and collectively, as applicable, Parent,
Sub and Mohawk or any designee, assign or purchaser in conjunction with a
concurrent or subsequent sale of the Lees Business.
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. "Claim" means a "claim," as defined in section 101(5) of the
Bankruptcy Code, against any Debtor.
33. "Claims Objection Bar Date" means, for all Claims, other than those
Claims allowed in accordance with Section I.A.6.c, the latest of: (a) 120 days
after the Effective Date; (b) 60 days after the Filing of a 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.
34. "Class" means a class of Claims or Interests, as described in Article
II.
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35. "Closing" and "Closing Date" have the meanings ascribed to them in
Section 1.03(a) of the WLR Purchase Agreement.
36. "Confirmation" means the entry of the Confirmation Order on the docket
of the Bankruptcy Court.
37. "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.
38. "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.
39. "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
40. "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.
41. "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.
42. "Debtors" means, collectively, the debtors and debtors in possession
identified on the cover page to this Plan.
43. "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).
44. "DIP Financing Order" means the Final Order (I) Authorizing Debtor to
(A) Obtain Post-Petition Financing Pursuant to 11 U.S.C. (S)(S) 105, 361, 362,
363, 364(c)(1), 364(c)(2), 364(c)(3) and 364(d)(1), (B) Utilize Cash Collateral
Pursuant to 11 U.S.C. (S) 363 and (C) Repurchase Receivables Pursuant to 11
U.S.C. (S)(S) 105 and 363, and (II) Granting Adequate Protection to Pre-Petition
Secured Parties Pursuant to 11 U.S.C. (S)(S) 361, 362 and 363 entered by the
Bankruptcy Court on December 12, 2001.
45. "DIP Lenders" 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 Buyer or Reorganized
Purchased Debtors, as applicable, with respect to those Administrative Claims
identified in Sections III.A.1.c.
47. "Disclosure Statement" means the first amended 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 Administrative Claim" means an Administrative Claim (other
than those to be assumed by the Buyer or Reorganized Purchased Debtors, as
applicable, pursuant to Sections III.A.1.c and III.A.1.d) that is also a
Disputed Claim.
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49. "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 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.
50. "Disputed Insured Claim" and "Disputed Uninsured Claim" mean,
respectively, an Insured Claim or an Uninsured Claim that is also a Disputed
Claim.
51. "Distribution Record Date" means the Confirmation Date.
52. "Distribution Trust Assets" means, collectively: (a) Excluded Assets,
Excluded Balance Sheet Assets, 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 to be assumed by
the Buyer or Reorganized Purchased Debtors, as applicable, in accordance with
Sections III.A.1.c and III.A.1.d); (b) the proceeds of the foregoing; and (c)
the funds in the Burlington Fabrics Irrevocable Trust.
53. "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. (S) 1930.
54. "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.
55. "Distributions" means the distributions of cash to be made in
accordance with Article VI.
56. "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.
57. "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.
58. "Emergence Bonus" means the cash payment to be made to KERP
Participants in accordance with Exhibit III.E on the earlier of: (a) 90 days
after the Effective Date or (b) termination of the particular KERP Participant's
employment.
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59. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
60. "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 Parent, BII Distribution Trust and Escrow
Agent (as such term is defined in the WLR Purchase Agreement).
61. "Estate" means, as to each Debtor, the estate created for that Debtor
in its Reorganization Case pursuant to section 541 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 WLR
Purchase Agreement or otherwise left by the terms of the WLR Purchase Agreement
with the Estates on the Effective Date.
63. "Excluded Balance Sheet Assets" has the meaning given to it in the WLR
Purchase Agreement.
64. "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.
65. "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.
66. "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.
67. "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.
68. "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.
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69. "File", "Filed" or "Filing" means file, filed or filing with the
Bankruptcy Court or its authorized designee in the Reorganization Cases.
70. "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 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.
71. "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.
72. "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.
73. "Intercompany Claim" means any Claim by a Debtor against another
Debtor.
74. "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.
75. "IRS" means the Internal Revenue Service of the United States of
America.
76. "JPMorgan Chase Bank" means JPMorgan Chase Bank, as administrative
agent for the Prepetition Lenders or DIP Lenders, as applicable.
77. "KERP" means the Debtors' key employee retention and severance
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
and supplemented by order of the Bankruptcy Court dated March 31, 2003.
78. "KERP Participant" means an employee of the Debtors who, as of the
Effective Date, is a participant in the KERP.
79. "KERP Payments" means any and all payments due and owing or to be paid
to KERP Participants under the KERP. KERP Payments do not include the Emergence
Bonus.
80. "Lees Business" has the meaning given to it in the WLR Purchase
Agreement.
81. "Liabilities" all claims, obligations, suits, judgments, damages,
demands, debts, rights, Recovery Actions, causes of action and liabilities
(other than the right to enforce the Debtors', Reorganized Debtors', BII
Distribution Trust's or Buyer's obligations under or claims for fraud relating
to or for willful or material breach of the Plan and the WLR Purchase 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.
82. "Mohawk" means Mohawk Industries, Inc., a Delaware corporation.
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83. "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.
84. "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.
85. "Old Common Stock" means the common stock issued by Burlington and
outstanding immediately prior to the Effective Date.
86. "Old Nonvoting Common Stock" means the nonvoting common stock issued
by Burlington and outstanding immediately prior to the Effective Date.
87. "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.
88. "Old Senior Notes" means, collectively, the 2005 7.25% Senior Notes
and the 2027 7.25% Senior Notes.
89. "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.
90. "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.
91. "PBGC" means the Pension Benefit Guaranty Corporation.
92. "Parent" means, WLR Recovery Fund II L.P., a [_________] limited
partnership.
93. "Pension Plan" has the meaning given to it in the WLR Purchase
Agreement.
94. "Petition Date" means November 15, 2001.
95. "Plan" means this first amended 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.
96. "Plan Supplement" means the form of documents specified in Section
XIII.H.
97. "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, JPMorgan 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.
98. "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.
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99. "Prepetition Lenders" means, collectively, (a) the lenders party to
the Prepetition Credit Facility and (b) JPMorgan Chase Bank (as agent bank).
100. "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.
101. "Priority Tax Claim" means a Claim that is entitled to priority in
payment pursuant to section 507(a)(8) of the Bankruptcy Code.
102. "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.
103. "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.
104. "Purchase Price" has the meaning given to it in the WLR Purchase
Agreement.
105. "Purchased Assets" has the meaning given to it in the WLR Purchase
Agreement.
106. "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.
107. "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.
108. "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.
109. "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;
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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.
110. "Released Parties" means, collectively, any Debtor, any Reorganized
Debtor, any Estate, the Buyer, the BII Distribution Trust, the Distribution
Trust Representative, any member of the Creditors' Committee, any Prepetition
Lender or any DIP Lender and each of their respective present or former
directors, officers, employees, partners, members, shareholders, attorneys,
accountants, underwriters, investment bankers, financial advisors and agents,
acting in such capacity.
111. "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.
112. "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.
113. "Reorganized . . ." means, when used in reference to a particular
Debtor or Debtors, such Debtor(s) on and after the Effective Date. The term
Reorganized Debtors includes the Reorganized Purchased Debtors.
114. "Reorganized Purchased Debtors" means those Reorganized Debtors whose
New Common Stock or New Subsidiary Equity Interests are issued to the Buyer.
115. "Restructuring Transactions" means, collectively, those mergers,
consolidations, restructurings, dispositions, liquidations or dissolutions that
the Debtors, Reorganized Debtors or Buyer 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.
116. "Sale Proceeds" means the cash to be paid by the Buyer to the BII
Distribution Trust under the terms of the WLR Purchase Agreement.
117. "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.
118. "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.
119. "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
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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.
120. "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.
121. "Sub" means, [______________], a [_________] [corporation].
122. "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.
123. "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.
124. "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.
125. "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.
126. "Uninsured Claim" means any Claim that is not an Insured Claim.
127. "Unsecured Claim" means any Claim that is not an Administrative Claim,
Cure Amount Claim, Priority Claim, Priority Tax Claim, Secured Claim or
Intercompany Claim.
128. "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.
129. "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.
130. "WLR Purchase Agreement" means the Acquisition Agreement, dated as of
July 25, 2003 and amended as of July 29, 2003, as the same may be amended, by
and between Burlington (as seller) and the Buyer (as purchaser), attached hereto
as Exhibit I.A.130 (including all annexes, exhibits, and schedules thereto). The
WLR Purchase Agreement is incorporated into the Plan and made a part of it as
set forth in Section IV.B.3.
131. "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 WLR Purchase 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
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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.
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 (Other Secured Claims): Secured Claims against any Debtor that
are not classified in Class 3.
B. Impaired Classes of Claims and Interests
1. Class 3 (Prepetition Bank Claims): Secured Claims consisting of
principal and interest at the non-default rate arising under the Debtors'
Prepetition Credit Facility. This Class is being deemed impaired because holders
of Class 3 Claims have asserted a right to interest at the default rate under
the Debtors' Prepetition Credit Facility.
2. Class 4 (General Unsecured Claims): Unsecured Claims against any
Debtor that are not otherwise classified under the Plan.
3. 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
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claims will be treated as a single Claim and no splitting of Claims will be
recognized for purposes of this Distribution.
4. 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.
5. Class 7 (Intercompany Claims): Claims of a Debtor against another
Debtor that are not Administrative Claims.
6. Class 8 (Equity Interests): Interests on account of the Old Common
Stock, the Old Nonvoting Common Stock and the Old Subsidiary Equity Interests.
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 the Assumed Liabilities, including those Administrative
Claims identified in Sections III.A.1.c and III.A.1.d, shall be assumed by the
Buyer or Reorganized Purchased Debtors, as applicable, and satisfied as set
forth in Sections III.A.1.c and III.A.1.d. The BII Distribution Trust shall have
no liability of any kind on account of the Assumed Liabilities.
b. Statutory Fees
On or before the Effective Date, Administrative Claims for fees
payable pursuant to 28 U.S.C. (S) 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. (S)
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. Liabilities to Be Assumed by the Buyer or Reorganized Purchased
Debtors
The Assumed Liabilities, including Administrative Trade Claims and
Administrative Claims arising from Assumed Contracts (including those contracts
and leases of the kind described in Sections V.A and V.F), shall be assumed by
the Buyer or Reorganized Purchased Debtors, as applicable, 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 Buyer or Reorganized Purchased Debtors, as
applicable, without any further action by the holders of such Administrative
Claims. Notwithstanding the foregoing, after the Effective Date, the Reorganized
Purchased Debtors or Buyer may File, settle, compromise, withdraw or
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litigate to judgment objections to any Claims for which they have assumed
liability under the Plan and the WLR Purchase Agreement.
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 Distribution
Trust Representative. On or before the Effective Date, the Buyer or Reorganized
Purchased Debtors, as applicable, 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) the letter of credit
issued under the DIP Credit Agreement and Burlington's outstanding surety bonds,
in each case relating to the Business, including any replacements thereof and
any other letters of credit issued under the DIP Credit Agreement and surety
bonds arising in the ordinary course of the Business subsequent to the date of
the WLR Purchase Agreement; provided, however, that in no event will the Buyer
be obligated to obtain substitutions or secure any such back-to-back
arrangements to the extent such substitutions or arrangements support
obligations that are not assumed by the Buyer.
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. Liabilities to Be Assumed by the Buyer or Reorganized
Purchased Debtors
Holders of the Assumed Liabilities, including Administrative Trade
Claims and Administrative Claims arising from Assumed Contracts (including those
contracts and leases of the kind described in Sections V.A and V.F), will not be
required to File or serve any request for payment of such Administrative Claims.
Such
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Administrative Claims will be satisfied pursuant to Section III.A.1.c.
Notwithstanding any other provision in the Plan, after the Effective Date, the
Reorganized Purchased Debtors or Buyer may File, settle, compromise, withdraw or
litigate to judgment objections to any Claims for which they have assumed
liability under the Plan and the WLR Purchase Agreement.
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 Distribution Trust Representative, 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.
2. Payment of Priority Tax Claims
a. Priority Tax Claims
Unless otherwise agreed by the holder of a Priority Tax Claim and the
Distribution Trust Representative, each holder of an Allowed Priority Tax Claim
will receive in full satisfaction of its Claim cash from the BII Distribution
Trust 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 Distribution Trust Representative
and the holder of the Priority Tax Claims. All Allowed Priority Tax Claims shall
be satisfied in full as set forth in the Plan or as otherwise agreed upon by the
holders of such Claims and the Distribution Trust Representative.
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,
Buyer 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 (Other Secured 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.
C. Impaired Classes of Claims and Interests
1. Class 3 Claims (Prepetition Bank Claims) are impaired. On the
Effective Date, each holder of an Allowed Claim, consisting of principal and
interest at the non-default rate, in Class 3 will receive cash from the BII
Distribution Trust equal to the amount of such Allowed Claim arising under the
Debtors' Prepetition Credit Facility.
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2. 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.
3. 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 45% 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.
4. 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.
5. Class 7 Claims (Intercompany Claims) are impaired. No property will be
distributed to or retained by the Debtors 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 Debtors holding an 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.
6. 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 KERP Payments and
Emergence Bonus
On and after the Effective Date, KERP Participants may receive a cash
KERP Payment from the BII Distribution Trust in accordance with the terms of the
KERP. On the earlier to occur of (1) 90 days after the Effective Date and (2)
termination for any reason of the particular KERP Participant's employment after
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 Participant 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 KERP Payments or Emergence Bonus and, upon the occurrence of the
Effective Date, the KERP Payments and Emergence Bonus will be immediately due
and payable in accordance with the terms of Exhibit III.E or the KERP, as
applicable, to each KERP Participant and will constitute an Allowed
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
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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
1. Except as otherwise provided in the Plan (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.
2. 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 in the Plan or 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.
3. Other than the Distribution Trust Assets and except as otherwise
provided in the Plan or in the WLR Purchase Agreement, as of the Effective Date,
all property of the Debtors' Estates 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 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.
4. The transfer of property of the Debtors' Estates to the Buyer will
occur, pursuant to the WLR Purchase Agreement and sections 363, 1123(a) and
1123(b) of the Bankruptcy Code, concurrently with the Effective Date. Such
property will be transferred to the Buyer free and clear of any and all Claims,
liens, charges, other encumbrances and Interests, pursuant to section 363(f) of
the Bankruptcy Code and the Confirmation Order. As soon as practicable after the
Distribution Trust Representative has liquidated all of the Debtors' property
not transferred to the Buyer and completed all Distributions provided for in the
Plan, the Distribution Trust Representative will effectuate the dissolution of
any Reorganized Debtor whose New Common Stock or New Subsidiary Equity Interests
were not issued to the Buyer in accordance with the laws of its (or their
respective) jurisdiction.
B. Restructuring Transactions
1. Restructuring Transactions Generally
On or after the Confirmation Date, the applicable Debtors, Reorganized
Debtors or Buyer 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, Reorganized Debtors or Buyer
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
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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. Forms of Restructuring Transactions
The Restructuring Transactions may include one or more mergers,
consolidations, restructurings, dispositions, liquidations or dissolutions, as
may be determined by the Debtors, Reorganized Debtors or Buyer 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, 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 or Buyer shall perform such obligations.
3. Implementation of WLR Purchase Agreement
Concurrently with the Effective Date, the Debtors or Reorganized
Debtors, as applicable, will sell and transfer the Purchased Assets and issue
New Subsidiary Equity Interests (or issue New Common Stock, if applicable) to
the Buyer in consideration for its payment of the Purchase Price to the BII
Distribution Trust, in cash, subject to adjustment in accordance with the WLR
Purchase 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 WLR Purchase Agreement and its terms are incorporated
into and are made a part of the Plan. On or after the Confirmation Date, the
applicable Debtors, Reorganized Debtors or Buyer may take such actions as are
consistent with the WLR Purchase Agreement and may be necessary or appropriate
to effect the transactions contemplated by the WLR Purchase 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
WLR Purchase 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 WLR
Purchase 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.
4. Issuance of New Common Stock
On the Effective Date, Reorganized Burlington will be authorized to
issue the New Common Stock. All shares of New Common Stock will be issued either
to the Buyer in accordance with the terms, and subject to the conditions, of the
WLR Purchase Agreement or to the BII Distribution Trust, if not issued to the
Buyer. There will be no options of any kind outstanding with respect to the
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. All New
Subsidiary Equity Interests will be issued either to the Buyer in accordance
with the terms, and subject to the conditions, of the WLR Purchase Agreement or
to the BII Distribution Trust, if not issued to the Buyer. There will be no
options of any kind outstanding with respect to any equity interests in any of
the Burlington Subsidiary Debtors.
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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 those to be
assumed by the Buyer or Reorganized Purchased Debtors, as applicable, pursuant
to Sections III.A.1.c and III.A.1.d) 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 Bankruptcy 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 WLR
Purchase 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; (viii)
exercise such other powers as may be vested in it or as deemed by it to be
necessary and proper to implement the provisions thereof; (ix) liquidate any
assets of any Reorganized Debtor whose New Common Stock or New Subsidiary Equity
Interests, as applicable, are issued to the BII Distribution Trust; and (x)
dissolve any Reorganized Debtor whose New Common Stock or New Subsidiary Equity
Interests, as applicable, are issued to the BII Distribution Trust, as necessary
or appropriate. 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.
(S) 3713(b) and 26 U.S.C. (S) 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; (v) prosecute, compromise and settle in accordance
with the specified terms of the Plan and the BII Distribution Trust Agreement
all Disputed Claims; (vi) liquidate any assets of any Reorganized Debtor whose
New Common Stock or New Subsidiary Equity Interests, as applicable, are issued
to the BII Distribution Trust; and (vii) dissolve any Reorganized Debtor whose
New Common Stock or New Subsidiary Equity Interests, as applicable, are issued
to the BII Distribution Trust, as necessary or appropriate. 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.
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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 and the Administrative 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 and the
Administrative 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, dissolve any of the Debtors and
Burlington's nondebtor subsidiaries which remain in existence after the
Effective Date and which are not sold in a sale once their continued existence
is no longer necessary, 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 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
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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 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
Immediately after the Effective Date, all officers and directors of
each of the Debtors shall be deemed to have resigned. For any Reorganized
Purchased Debtor, the initial officers and directors shall be the individuals
designated by the Buyer, to be effective as of the Effective Date. On the
Effective Date, the Distribution Trust Representative will become the sole
director and officer of any Reorganized Debtor whose New Common Stock or New
Subsidiary Equity Interests are issued to the BII Distribution Trust. The
Distribution Trust Representative will be authorized to execute, deliver, file
or record any document or take any other action necessary or desirable to
implement the terms of the Plan.
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3. New Employment, Retirement, Indemnification and Other Related
Agreements and Incentive Compensation Programs
As of the Effective Date, the Reorganized Purchased Debtors or Buyer,
as applicable, will, subject to the provisions of the WLR Purchase Agreement,
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.
4. Corporate Action
The Restructuring Transactions; the transactions contemplated by the
WLR Purchase 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 WLR Purchase 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 WLR
Purchase 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, and after giving effect to the releases
in Section IV.D.3, any Recovery Action that any Debtor or Estate may hold
against any entity 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.
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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 and their affiliates, the Estates and their
respective successors, assigns, and any and all entities who may purport to
claim by, through, for or because of them, including any person appointed
pursuant to section 1123(b)(3) to pursue Recovery Actions, 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 WLR Purchase
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
WLR Purchase 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 WLR Purchase 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, including any
Liabilities against Released Parties, released pursuant to the Plan.
E. Continuation or Termination of Certain Employee 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 WLR Purchase 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 and, to the extent
necessary, assigned to the Buyer pursuant to sections 365(a), 365(f) and
1123(b)(2) of the Bankruptcy Code.
On the Closing Date or on such later date described in the WLR
Purchase Agreement, the Buyer or Reorganized Purchased Debtors, as applicable,
will: (a) offer to hire each employee primarily involved in the Business (the
employees who accept such offer are referred to as "Transferred Employees"); (b)
for at least two years following the Closing Date, provide such Transferred
Employees with compensation and benefits that are no less favorable in the
aggregate than the benefits provided by the Debtors prior to the transaction;
and (c) assume certain Liabilities and obligations of the Transferred Employees
with respect to certain employee benefit plans as set
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forth on Exhibit IV.C.3(a). Notwithstanding the foregoing, with regard to
employees who do not directly work for one of Burlington's divisions, the Buyer
or Reorganized Purchased Debtors, as applicable, will determine on a case by
case basis whether to offer employment and the corresponding benefits to such
employees.
On the Effective Date, the employment agreements and benefit plans set
forth on Exhibit IV.C.3(b) 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, Distribution Trust Representative nor Buyer will have any further
obligations under such agreements or plans.
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 WLR
Purchase 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 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, the Buyer 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; (5) any transfer or transaction contemplated by the WLR Purchase
Agreement, including the concurrent or subsequent sale of the Lees Business; or
(6) 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.
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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 WLR Purchase 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.107 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.
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.107 and V.A.2) to be held by Reorganized Burlington,
any Reorganized Debtor, the Buyer 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, and if assigned, the party that the contract or lease is being
assigned to; (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
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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 no later than 20 days after 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. In accordance with the WLR Purchase Agreement, all Cure
Amount Claims shall be assumed by the Buyer or Reorganized Purchased Debtors, as
applicable, and satisfied in full as set forth in the Plan or as otherwise
agreed to by the holders of such Claims and the Buyer or Reorganized Purchased
Debtors, as applicable. The BII Distribution Trust shall have no liability for
the Cure Amount Claims relating to contracts or leases assumed by the
Reorganized Purchased Debtors or assumed and assigned to the Buyer.
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.107 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.107)
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
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, Buyer, 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.
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E. Special Executory Contract and Unexpired Lease Issues
1. Obligations to Indemnify Directors, Officers and Employees
a. Prior to the Effective Date, Burlington shall make arrangements
to acquire for the benefit of its directors, officers and employees, and
prior to the Effective Date shall fully pay for, insurance extending for a
six-year period for all directors and officers liability, fiduciary
(including ERISA) and errors and omissions insurance existing as of the
date of the WLR Purchase Agreement to the extent applicable to acts or
omissions occurring in whole or in part prior to or on the Effective Date.
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 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
Unless otherwise agreed to by the Debtor, the Reorganized Debtor or
the Buyer and the nondebtor party to such contract or lease, 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, Reorganized Debtor or Buyer, as applicable, 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.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims Allowed as of the Effective Date
Except as otherwise provided in Article VI of the Plan, 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: (1) 60 days after the Effective Date or (2) such later date when the
applicable conditions of Section V.B of the Plan
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(regarding cure payments for Executory Contracts and Unexpired Leases being
assumed), Section VI.G.2 of the Plan (regarding undeliverable Distributions) or
Section VI.K of the Plan (regarding surrender of cancelled instruments and
securities) are satisfied. No Distributions shall be made under the Plan until
after (1) the date of the Administrative Claims Bar Date and (2) the
establishment of any necessary Administrative Claims Reserve. 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 the Buyer or
Reorganized Purchased Debtors
The Buyer or Reorganized Purchased Debtors, as applicable, shall make
all Distributions to holders of the Assumed Liabilities, including those
Administrative Claims identified in Section III.A.1.c. In addition, pursuant to
Section III.A.1.d, the Buyer or Reorganized Purchased Debtors, as applicable,
shall have the sole obligation to cause replacement letters of credit to be
issued to each holder of a letter of credit issued under the DIP Credit
Agreement and Burlington's outstanding surety bonds, in each case relating to
the Business, including any replacements thereof and any other letters of credit
issued under the DIP Credit Agreement and surety bonds arising in the ordinary
course of the Business subsequent to the date of the WLR Purchase Agreement.
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 3 Claims, JPMorgan
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 JPMorgan 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 Claims Reserves
1. Funding of Claims Reserves
a. 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.
b. Administrative Claims Reserve
If Disputed Administrative Claims (other than the Administrative
Claims to be assumed by the Buyer or Reorganized Purchased Debtors, as
applicable, pursuant to Sections III.A.1.c and III.A.1.d) exist after the date
of the Administrative Claims Bar Date, the Administrative Claims Reserve will be
established for the benefit of the holders of such Disputed Administrative
Claims. The Distribution Trust Representative will fund the Administrative
Claims Reserve with cash from the Distribution Trust Assets. The Administrative
Claims Reserve will remain in full force and effect until all Disputed
Administrative Claims are resolved and satisfied in accordance with the Plan.
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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.
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, Estate or the Buyer; 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 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
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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.
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 under the Plan 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.
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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 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.
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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 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
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Objection Bar Date. Each such Tort Claim will remain a Disputed Claim until it
becomes an Allowed Claim in accordance with Section I.A.6.
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 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 Purchased Debtors or Buyer
may File, settle, compromise, withdraw or litigate to judgment objections to any
Claims for which they have assumed liability under the Plan and the WLR Purchase
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 Administrative Claims, the Administrative Claims Reserve will be
established on the Effective Date to hold property for the benefit of these
Administrative Claim holders. 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 Administrative Claims Reserve and 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, the BII Distribution Trust or the Buyer pursuant to Section IV.A.
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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 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. (S) 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 August 1, 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
Buyer, the Reorganized Purchased Debtors or the WLR Purchase 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 WLR
Purchase 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 WLR Purchase
Agreement.
3. All conditions to the Closing under the WLR Purchase Agreement (other
than effectiveness of the Plan) shall have been satisfied or waived, and the
Closing under the WLR Purchase Agreement shall occur concurrently with the
Effective Date of the Plan.
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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
conditions set forth in Sections IX.B.1 and IX.B.3, may be waived in whole or
part by the Debtors at any time without an order of the Bankruptcy Court. The
failure to satisfy or waive a condition may be asserted by a Debtor regardless
of the circumstances giving rise to the failure of such condition to be
satisfied (including any action or inaction by the Debtors).
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.
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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 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
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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.
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 WLR Purchase Agreement, unless
specifically provided otherwise in the WLR Purchase 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;
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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;
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 WLR
Purchase 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 WLR Purchase 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 WLR Purchase 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
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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 WLR Purchase 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.
C. Modification of the Plan and Exhibits
Subject to the restrictions on modifications set forth in section
1127 of the Bankruptcy Code, 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.
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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 WLR Purchase Agreement
shall be attached along with the Plan to the Confirmation Order. To the extent
the Plan is inconsistent with the WLR Purchase Agreement, the provisions of the
WLR Purchase Agreement shall be controlling.
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 Lenders, 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.: 302-573-6497
(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
Adam G. Landis, Esq.
Landis, Rath & Cobb LLP
919 Market Street, Suite 600
P.O. Box 2987
Wilmington, DE 198901
Facsimile No.: 302-467-4450
(Counsel to JPMorgan Chase Bank as agent under the Prepetition Credit
Facility)
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5. Buyer:
Pamela K. Wilson
WLR Recovery Fund II L.P.
C/o WL Ross & Co. LLC
101 East 52nd Street
New York, NY 10022
Facsimile No.: 212-317-4891
Lewis Kruger, Esq.
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Facsimile No.: 212-806-6006
(Counsel to WLR Recovery Fund II L.P.)
John Swift
Mohawk Industries, Inc.
160 South Industrial Boulevard
Calhoun, GA 30701
Facsimile No.: 706-625-3851
Alexander W. Patterson, Esq.
Alston & Bird LLP
1201 West Peachtree Street
Atlanta, GA 30309-3424
Facsimile No.: 404-881-4777
(Counsel to Mohawk Industries, Inc.)
6. United States Trustee
Margaret Norway Harrison, Esq.
Office of the United States Trustee
2311 J. Caleb Boggs Building
844 King Street, Room 2313
Wilmington, DE 19801
Facsimile No.: 302-573-6497
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Dated: August 1, 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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