Exhibit 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: ) Chapter 11
)
Conseco, Inc., et al.,(1) )
) Case No. 02 B49672
Debtors. ) Honorable Carol A. Doyle
) (Jointly Administered)
)
REORGANIZING DEBTORS' SIXTH AMENDED JOINT PLAN OF REORGANIZATION
PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
James H.M. Sprayregen, P.C.
Anne M. Huber
Anup Sathy
Ross M. Kwasteniet
KIRKLAND & ELLIS LLP
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Counsel for the Debtors and Debtors in Possession
Dated: September 9, 2003
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1 The Reorganizing Debtors are the following entities: (i) Conseco, Inc.,
(ii) CIHC, Incorporated, (iii) CTIHC, Inc., and (iv) Partners Health Group,
Inc., (defined herein, collectively, as the "Debtors" or "Reorganizing
Debtors"). This Plan is not a chapter 11 plan for the Finance Company
Debtors (as defined herein).
TABLE OF CONTENTS
Page
Article I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME AND GOVERNING LAW..........................1
A. Rules of Interpretation, Computation of Time and Governing Law..................................1
B. Proponents of Plan..............................................................................1
C. Severability of Plan Provisions.................................................................1
D. Substantive Consolidation.......................................................................2
E. Defined Terms...................................................................................2
Article II. ADMINISTRATIVE AND PRIORITY TAX CLAIMS AGAINST ALL OF THE DEBTORS....................................18
A. Administrative Claims..........................................................................18
B. Priority Tax Claims............................................................................19
Article III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS..............................19
A. Summary........................................................................................19
B. Classification and Treatment of Classified Claims and Equity Interests: CNC....................21
C. Classification and Treatment of Classified Claims and Equity Interests: CIHC...................25
D. Classification and Treatment of Classified Claims and Equity Interests: CTIHC..................30
E. Classification and Treatment of Classified Claims and Equity Interests:
Partners Health Group, Inc.....................................................................31
Article IV. ACCEPTANCE OR REJECTION OF THE PLAN..................................................................33
A. Voting Classes.................................................................................33
B. Acceptance by Impaired Classes.................................................................33
C. Presumed Acceptance of Plan....................................................................33
D. Presumed Rejection of Plan.....................................................................34
E. Non-Consensual Confirmation....................................................................34
Article V. MEANS FOR IMPLEMENTATION OF THE REORGANIZING SUBPLANS.................................................34
A. Corporate Existence and Vesting of Assets in the Reorganizing Debtors and Old CNC..............34
B. Cancellation of Old Notes, Old Preferred Stock and Old Common Stock............................34
C. Issuance of New Securities; Execution of Related Documents.....................................35
D. Creation of Residual Trust.....................................................................35
E. Liquidation of Old CNC.........................................................................35
F. Intercompany Settlement........................................................................35
G. Implementation of Senior Management KERP.......................................................36
H. Assumption of the Senior Management Employment Agreements......................................36
I. TOPrS Settlement...............................................................................36
J. Creation of Professional Escrow Account........................................................38
K. Corporate Governance, Directors and Officers, and Corporate Action.............................38
L. Sources of Cash for Plan Distribution..........................................................41
M. Retiree Benefits...............................................................................41
N. GM Building Sale...............................................................................41
Article VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................41
A. Executory Contracts and Unexpired Leases.......................................................41
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases...........................42
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed..........................42
D. Indemnification of Directors, Officers and Employees...........................................42
E. Compensation and Benefit Programs..............................................................42
F. Assumption of D&O Insurance....................................................................43
Article VII. PROVISIONS GOVERNING DISTRIBUTIONS..................................................................43
A. Distributions for Claims and Equity Interests Allowed as of the Effective Date.................43
B. Distributions by the Distribution Agent(s).....................................................44
C. Delivery and Distributions and Undeliverable or Unclaimed Distributions........................44
D. Timing and Calculation of Amounts to be Distributed............................................45
E. Minimum Distribution...........................................................................45
F. Setoff.........................................................................................45
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G. Surrender of Canceled Instruments or Securities................................................46
H. Failure to Surrender Canceled Instruments......................................................46
I. Lost, Stolen, Mutilated or Destroyed Securities................................................46
Article VIII. PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS OR EQUITY INTERESTS......46
A. Resolution of Disputed Claims..................................................................46
B. Allowance of Claims and Equity Interests.......................................................47
C. Controversy Concerning Impairment..............................................................47
D. Reserve of New CNC Common Stock................................................................47
Article IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN....................................48
A. Conditions to Confirmation.....................................................................48
B. Conditions Precedent to Consummation...........................................................48
C. Waiver of Conditions...........................................................................49
D. Effect of Non-Occurrence of Conditions to Consummation.........................................49
Article X. RELEASE, INJUNCTIVE AND RELATED PROVISIONS............................................................49
A. Compromise, Settlement and Discharge..........................................................49
B. Releases by the Debtors........................................................................50
C. Releases by Holders of Claims..................................................................50
D. Exculpation....................................................................................50
E. Preservation of Rights of Action...............................................................51
F. Discharge of Claims and Termination of Equity Interests........................................52
Article XI. RETENTION OF JURISDICTION............................................................................52
Article XII. MISCELLANEOUS PROVISIONS............................................................................53
A. Modification of Plan Supplement................................................................53
B. Effectuating Documents, Further Transactions and Corporation Action............................53
C. Dissolution of Committee(s)....................................................................53
D. Payment of Statutory Fees......................................................................53
E. Modification of Plan...........................................................................53
F. Revocation of Plan.............................................................................54
G. Successors and Assigns.........................................................................54
H. Reservation of Rights..........................................................................54
I. Section 1146 Exemption.........................................................................54
J. Further Assurances.............................................................................55
K. Service of Documents...........................................................................55
L. Transactions on Business Days..................................................................55
M. Filing of Additional Documents.................................................................55
N. Term of Injunctions or Stays...................................................................55
O. Entire Agreement...............................................................................55
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REORGANIZING DEBTORS' SIXTH AMENDED JOINT PLAN OF REORGANIZATION PURSUANT
TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
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Pursuant to Title 11 of the United States Code, 11 U.S.C. ss.ss. 101 et
seq., the Debtors and Debtors in Possession in the above-captioned and numbered
cases, hereby respectfully propose the following Joint Plan of Reorganization
under Chapter 11 of the Bankruptcy Code:
Article I.
DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
A. Rules of Interpretation, Computation of Time and Governing Law
1. For purposes herein: (a) whenever from the context it is appropriate,
each term, whether stated in the singular or the plural, shall include both the
singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, feminine and the neuter gender; (b)
any reference herein to a contract, instrument, release, indenture or other
agreement or document being in a particular form or on particular terms and
conditions means that such document shall be substantially in such form or
substantially on such terms and conditions; (c) any reference herein to an
existing document or exhibit Filed, or to be Filed, shall mean such document or
exhibit, as it may have been or may be amended, modified or supplemented; (d)
unless otherwise specified, all references herein to Sections and Articles are
references to Sections and Articles hereof or hereto; (e) the words "herein,"
"hereof" and "hereto" refer to the Plan in its entirety rather than to a
particular portion of this Plan; (f) 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 hereof; (g) the rules of
construction set forth in section 102 of the Bankruptcy Code shall apply; and
(h) any term used in capitalized form herein that is not otherwise defined but
that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the
meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as
the case may be.
2. In computing any period of time prescribed or allowed hereby, the
provisions of Bankruptcy Rule 9006(a) shall apply.
3. Except to the extent that the Bankruptcy Code or Bankruptcy Rules are
applicable, and subject to the provisions of any contract, instrument, release,
indenture or other agreement or document entered into in connection herewith,
the rights and obligations arising hereunder shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
giving effect to the principles of conflict of laws thereof.
B. Proponents of Plan
This Plan is proposed by the Reorganizing Debtors. The classification and
treatment of Claims and Equity Interests against the Reorganizing Debtors is
contained in Article III.
C. Severability of Plan Provisions
1. The Plan comprises four subplans of reorganization. The confirmation
requirements of section 1129 of the Bankruptcy Code must be satisfied separately
with respect to each subplan. If any subplan is not confirmed, the Debtors
reserve the right, with the prior written consent of the Conseco Creditors
Committee, to either (a) request that the other subplans be confirmed or (b)
withdraw some or all subplans; provided that (i) the subplan for CIHC may not be
confirmed unless the subplan for CNC is confirmed and (ii) the subplan for CNC
may not be confirmed unless the subplan for CIHC is confirmed. Subject to the
preceding provision, the Debtors' inability to confirm or election to withdraw
any subplan(s) shall not impair the confirmation of any other subplan(s).
D. Substantive Consolidation
The estates of the Debtors have not been substantively consolidated. The
Claims held solely against one of the Debtors will be satisfied solely from the
cash and assets of such Debtor except as provided for herein. Except as
specifically set forth herein, nothing in this Plan or the Disclosure Statement
shall constitute or be deemed to constitute an admission that one of the Debtors
is subject to or liable for any Claim against any other Debtor. Except as
specifically set forth herein, the Claims of Creditors that hold Claims against
multiple Debtors will be treated as separate Claims with respect to each
Debtor's estate for all purposes (including, but not limited to, distributions
and voting), and such Claims will be administered as provided in the Plan. Any
Claims against any Debtor will be satisfied according to the terms of the Plan.
E. Defined Terms
Unless the context otherwise requires, the following terms shall have the
following meanings when used in capitalized form herein:
1. "93/94 Notes" means, collectively, (i) 8.125% Senior Notes; and (ii)
10.5% Senior Notes.
2. "93/94 Note Claims" means all unpaid principal and interest (prepetition
and postpetition) on the 93/94 Notes, through the Effective Date, plus costs and
fees provided for under the indentures governing the 93/94 Notes.
3. "93/94 Notes Distribution" means, at CNC's option, (A) New CNC Common
Stock issued on the Effective Date having a value (based on Plan Value) equal to
the amount of the Allowed Class 4A 93/94 Note Claims, (B) the New Senior Notes
issued on the Effective Date with a principal amount equal to the amount of the
Allowed Class 4A 93/94 Note Claims in accordance with the terms summarized in
the 93/94 Notes Term Sheet as found in the Plan Supplement or (C) some
combination of (i) New CNC Common Stock (based on Plan Value) and (ii) New
Senior Notes that, in the aggregate, equal the value of the Allowed Class 4A
93/94 Note Claims. The Class 4A Notice (to be mailed to holders of the 93/94
Note Claims 30 days before the Voting Deadline) will disclose whether CNC chose
option (A) or option (B) for the 93/94 Notes Distribution, provided that such
election shall revert to option (A) above if CFC asserts a Class 4A Claim by
virtue of CFC previously satisfying the Holders of the 93/94 Notes, which is not
satisfied herein.
4. "93/94 Notes Term Sheet" means that document in the Plan Supplement
summarizing the new notes that may be issued pursuant to the 93/94 Notes
Distribution.
5. "6.4% Original Notes" means the $250 million original principal amount
6.4% senior notes due February 10, 2003, issued by CNC, with $246,880,305 in
principal and accrued but unpaid interest outstanding as of the Petition Date.
6. "6.8% Original Notes" means the $250 million original principal amount
6.8% senior medium-term notes, Series A, due June 15, 2005, issued by CNC, with
$102,646,601 in principal and accrued but unpaid interest outstanding as of the
Petition Date.
7. "8.5% Original Notes" means the $450 million original principal amount
8.5% senior notes due October 15, 2002, issued by CNC with $237,808,925
outstanding in principal and accrued but unpaid interest as of the Petition
Date.
8. "8.75% Original Notes" means the $800 million original principal amount
8.75% senior notes due February 9, 2004, issued by CNC pursuant to the senior
indenture dated as of November 13, 1997, and pursuant to prospectus supplement
filed with the SEC on February 3, 2000, with $455,528,087 in principal and
accrued but unpaid interest outstanding as of the Petition Date.
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9. "9.0% Original Notes" means the $550 million original principal amount
9.0% senior notes due October 15, 2006, issued by CNC, with $159,961,100 in
principal and accrued but unpaid interest outstanding as of the Petition Date.
10. "10.75% Original Notes" means the $400 million original principal
amount 10.75% senior notes due June 15, 2008, issued by CNC, with $39,619,881 in
principal and accrued but unpaid interest outstanding as of the Petition Date.
11. "6.4% Exchange Notes" means the $14,936,000 original principal amount
6.4% senior notes due February 10, 2004, issued by CNC and guaranteed by CIHC,
with $15,763,476 in principal and accrued but unpaid interest outstanding as of
the Petition Date.
12. "6.8% Exchange Notes" means the $150,783,000 original principal amount
6.8% senior notes due June 15, 2007, issued by CNC and guaranteed by CIHC, with
$156,092,447 in principal and accrued but unpaid interest outstanding as of the
Petition Date.
13. "8.5% Exchange Notes" means the $991,000 original principal amount 8.5%
senior notes due October 15, 2003, issued by CNC and guaranteed by CIHC, with
$1,048,499 in principal and accrued but unpaid interest outstanding as of the
Petition Date.
14. "8.75% Exchange Notes" means the $364,294,000 original principal amount
8.75% senior notes due August 9, 2006, issued by CNC and guaranteed by CIHC,
with $391,889,271 in principal and accrued but unpaid interest outstanding as of
the Petition Date.
15. "9.0% Exchange Notes" means the $399,200,000 original principal amount
9.0% senior notes due April 15, 2008, issued by CNC and guaranteed by CIHC, with
$423,709,217 in principal and accrued but unpaid interest outstanding as of the
Petition Date.
16. "10.75% Exchange Notes" means the $362,433,000 original principal
amount 10.75% senior notes due June 15, 2009, issued by CNC and guaranteed by
CIHC, with $382,472,525 in principal and accrued but unpaid interest outstanding
as of the Petition Date.
17. "8.125% Senior Notes" means the $200,000,000 original principal amount
8.125% senior notes due February 15, 2003, issued by CNC, with $67,892,689 in
principal and accrued but unpaid interest outstanding as of the Petition Date.
18. "10.5% Senior Notes" means the $200,000,000 original principal amount
10.5% senior notes due December 15, 2004, issued by CNC, with $25,855,090 in
principal and accrued but unpaid interest outstanding as of the Petition Date.
19. "1997 D&O Credit Facility" means the Credit Agreement dated as of May
13, 1996 among certain officers, directors and employees of CNC and its
subsidiaries, Bank of America, N.A., as Administrative Agent, and the financial
institutions signatory thereto, and all other agreements and instruments,
including guarantees, entered into in connection therewith, in each case as
amended, restated, refinanced, supplemented, waived, extended, renewed, replaced
or otherwise modified from time to time, including, without limitation, pursuant
to the following instruments: Amended and Restated Credit Agreement dated as of
August 26, 1997, Agreement dated as of September 22, 2000, Credit Agreement
dated as of November 22, 2000, First Amendment dated as of August 21, 2001,
First Stage Amendment and Agreement dated as of March 20, 2002, Waiver No. 1
dated as of August 14, 2002, Waiver No. 2 dated as of September 8, 2002 and
Waiver No. 3 dated as of October 18, 2002. The 1997 D&O Credit Facility is
guaranteed by CNC and CIHC.
20. "1998 D&O Credit Facility" means the Credit Agreement dated as of
August 21, 1998 among certain officers, directors and employees of CNC and its
subsidiaries, Bank of America, N.A., as Administrative Agent, and the financial
institutions signatory thereto, and all other agreements and instruments,
including guarantees, entered into in connection therewith, in each case as
amended, restated, refinanced, supplemented,
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waived, extended, renewed, replaced or otherwise modified from time to time,
including, without limitation, pursuant to the following instruments: Agreement
dated as of September 22, 2000, Credit Agreement dated as of November 22, 2000,
First Amendment dated as of August 21, 2001, Second Amendment dated as of
December 7, 2001, First Stage Amendment and Agreement dated as of March 20,
2002, Waiver No. 1 dated as of August 14, 2002, Waiver No. 2 dated as of
September 8, 2002 and Waiver No. 3 dated as of October 18, 2002. The 1998 D&O
Credit Facility is guaranteed by CNC and CIHC.
21. "1998 Non-Refinanced D&O Credit Facility" means the Credit Agreement
dated as of August 21, 1998 among certain officers, directors and employees of
CNC and its subsidiaries, Bank of America, N.A., as Administrative Agent, and
the financial institutions signatory thereto, and all other agreements and
instruments, including guarantees, entered into in connection therewith, in each
case as amended, restated, refinanced, supplemented, waived, extended, renewed,
replaced or otherwise modified from time to time, including, without limitation,
pursuant to the following instruments: Agreement dated as of September 22, 2000,
First Stage Amendment and Agreement dated as of March 20, 2002, Waiver No. 1
dated as of August 14, 2002, Waiver No. 2 dated as of September 8, 2002 and
Waiver No. 3 dated as of October 18, 2002. The 1998 Non-Refinanced D&O Credit
Facility is guaranteed by CNC and CIHC.
22. "1999 D&O Credit Facility" means the Credit Agreement dated as of
September 15, 1999 among certain officers, directors and employees of CNC and
its subsidiaries, JPMorgan Chase Bank, as Administrative Agent, and the
financial institutions signatory thereto, and all other agreements and
instruments, including guarantees, entered into in connection therewith, in each
case as amended, restated, refinanced, supplemented, waived, extended, renewed,
replaced or otherwise modified from time to time, including, without limitation,
pursuant to the following instruments: Termination and Replacement Agreement
dated as of May 30, 2000, Agreement dated as of September 22, 2000, Credit
Agreement dated as of November 22, 2000, First Stage Amendment and Agreement
dated as of March 20, 2002, Waiver No. 1 dated as of August 14, 2002, Waiver No.
2 dated as of September 8, 2002 and Waiver No. 3 dated as of October 18, 2002.
The 1999 D&O Credit Facility is guaranteed and secured by CNC and CIHC.
23. "Accrued Professional Compensation" means, at any given moment, all
accrued fees and expenses (including but not limited to success fees) for
services rendered by all Professionals in the Chapter 11 Cases that the
Bankruptcy Court has not denied by Final Order, to the extent such fees and
expenses have not been paid regardless of whether a fee application is filed for
such amount. To the extent a court denies by Final Order a Professional's fees
or expenses, such amounts shall no longer be considered Accrued Professional
Compensation.
24. "Administrative Claim" means a Claim for costs and expenses of
administration under sections 503(b), 507(a)(1), 507(b) or 1114(e)(2) of the
Bankruptcy Code, including, but not limited to: (a) the actual and necessary
costs and expenses incurred after the Petition Date of preserving the Estate and
operating the business of the Debtors (such as wages, salaries or commissions
for services and payments for goods and other services and leased premises); (b)
compensation for legal, financial advisory, accounting and other services and
reimbursement of expenses awarded or allowed under sections 328, 330(a) or 331
of the Bankruptcy Code or otherwise for the period commencing on the Petition
Date and ending on the Confirmation Date; and (c) all fees and charges assessed
against the Estate under chapter 123 of title 28 United States Code, 28 U.S.C.
ss.ss. 1911-1930.
25. "Allowed" means, with respect to Claims or Equity Interests, any Claim
against or Equity Interest in a Debtor, proof of which is timely Filed, or by
order of the Bankruptcy Court is not or will not be required to be Filed, any
Claim or Equity Interest that has been or is hereafter listed in the Schedules
as neither disputed, contingent or unliquidated, and for which no timely proof
of Claim has been Filed, or (c) any Claim Allowed pursuant to the Plan;
provided, however, that with respect to any Claim or Equity Interest described
in clauses (a) or (b) above, such Claim or Equity Interest shall be Allowed only
if (x) no objection to the allowance thereof has been interposed within the
applicable period of time fixed by the Plan, the Bankruptcy Code, the Bankruptcy
Rules or the Bankruptcy Court or (y) such an objection is so interposed and the
Claim or Equity Interest shall have been Allowed by a Final Order (but only if
such allowance was not solely for the purpose of voting to accept or reject the
Plan). Except as otherwise specified in the Plan or a Final Order of the
Bankruptcy Court, the amount of an Allowed Claim shall not include interest on
such Claim from and after the Petition Date.
26. "Allowed Claim" means an Allowed Claim in the particular Class
described.
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27. "Allowed Equity Interest" means an Allowed Equity Interest in the
particular Class described.
28. "Allowed Lender Claims" means the Allowed Claims of the Lenders and the
Lenders' Agents consisting of (a) all unpaid principal, interest, Waiver
Consideration and other charges accrued through the Petition Date (including,
without limitation, interest at default contract rates) in respect of the Senior
Credit Facility and respective D&O Credit Facilities, together with all Claims
arising from the CIHC Guarantee of Senior Credit Facility Claims, and the
Guarantees of D&O Credit Facilities, plus (b) all reasonable fees and expenses
(including, without limitation, the fees and expenses of counsel and financial
advisors to the Lenders and Lenders' Agents), and other charges. The Claims
referred to in clause (a) of the preceding sentence will be Allowed in the
following amounts: (i) Senior Credit Facility: $1,537,808,635.55; (ii) 1997 D&O
Credit Facility: $206,426,597.90; (iii) 1998 D&O Credit Facility:
$134,205,323.05; (iv) 1998 Non-Refinanced D&O Credit Facility: $10,133,691.23;
and (v) 1999 D&O Credit Facility: $146,375,210.76; the fees and expenses
referred to in clause (b) of the preceding sentence will be separately
quantified through the Effective Date.
29. "Available Proceeds" means the amount of Cash received at any time by
Old CNC from its liquidation of Residual Assets, after the payment in full in
Cash of (a) the reasonable costs and expenses associated with the liquidation
(including, without limitation, the payment of any taxes, assessments, insurance
premiums, repairs, legal fees and costs, rent, storage and sales commissions),
and (b) if applicable, the reasonable costs and expenses associated with the
Residual Trust.
30. "B-2 Guarantee Claims" means all Claims based on or derived from the
CFC guarantee of those certain certificates commonly known as "B-2
certificates".
31. "Ballots" mean the ballots accompanying the Disclosure Statement upon
which Holders of Impaired Claims or Impaired Equity Interests entitled to vote
shall indicate their acceptance or rejection of the Plan in accordance with the
Plan and the Voting Instructions.
32. "Bankruptcy Code" means Title 11 of the United States Code and
applicable portions of Titles 18 and 28 of the United States Code.
33. "Bankruptcy Court" means the United States Bankruptcy Court for the
Northern District of Illinois, or any other court having jurisdiction over the
Chapter 11 Cases.
34. "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as
amended from time to time, as applicable to the Chapter 11 Cases, promulgated
under 28 U.S.C. ss. 2075 and the General, Local and Chambers Rules of the
Bankruptcy Court.
35. "Bar Date for the Reorganizing Debtors" means February 21, 2003, except
as otherwise specified by order of the Bankruptcy Court.
36. "Beneficial Holder" means the Person or Entity holding the beneficial
interest in a Claim or Equity Interest.
37. "Business Day" means any day, other than a Saturday, Sunday or "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
38. "Cash" means cash and cash equivalents.
39. "Cause of Action" means any and all claims, causes of action, demands,
rights, actions, suits, obligations, liabilities, accounts, defenses, offsets,
powers, privileges, licenses and franchises of any kind or character whatsoever,
known, unknown, contingent or non-contingent, matured or unmatured, suspected or
unsuspected, whether arising before, on or after the Petition Date, in contract
or in tort, in law or in equity, or under any other theory of law. Without
limiting the generality of the foregoing, when referring to Causes of Action of
the Debtors or their Estates, "Causes of Action" shall include, but not be
limited to (i) rights of setoff, counterclaim or recoupment and claims on
contracts or for breaches of duties imposed by law; (ii) the right to object to
Claims or
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Equity Interests; (iii) Claims pursuant to sections 362, 510, 542, 543, 544
through 550, or 553 of the Bankruptcy Code; and (iv) such Claims and defenses as
fraud, mistake, duress and usury.
40. "CFC" means Conseco Finance Corp., a Delaware corporation.
41. "CFC/CIHC Intercompany Note" means that certain $1,460,799,080 note due
May 11, 2005, issued September 9, 2000, by CFC to CIHC, with $277,376,671 in
principal and accrued but unpaid interest outstanding as of the Petition Date.
42. "CFC Preferred Stock" means those 750 shares of 9% Redeemable
Cumulative Preferred Stock of CFC, held by CNC, with a stated value of $1
million per share.
43. "CFC Residual Intercompany Claims" means the amount (if any) that CIHC
owes to CFC on account of the CIHC/CFC Intercompany Note after setoff of the
CFC/CIHC Intercompany Note.
44. "CFC Subsidiary Guarantee" means the CIHC guarantee of up to $250
million of indebtedness of CFC based on CIHC's guarantee of (i) up to $125
million of CFC residual and warehouse facilities with Lehman Brothers; and (ii)
up to $125 million of CFC swingline debt and cash management facility with U.S.
Bank.
45. "CFC Subsidiary Guarantee Claims" means any and all Claims derived from
or based upon the CFC Subsidiary Guarantee.
46. "Chapter 11 Cases" means the chapter 11 bankruptcy proceedings filed by
the Debtors on the Petition Date in the Bankruptcy Court, with case numbers
02-49671 through 02-49674.
47. "CIHC" means CIHC, Incorporated, a Delaware corporation.
48. "CIHC General Unsecured Claims Cap" means the Deemed amount of the
Reorganizing Debtor General Unsecured Claims against CIHC, not to exceed $60
million in the aggregate.
49. "CIHC Guarantee of D&O Credit Facilities" means, collectively, the
guarantees by CIHC of the D&O Credit Facilities.
50. "CIHC Guarantee of Exchange Notes" means those guarantees by CIHC of
the Exchange Notes, pursuant to the first senior indenture and terms resolutions
dated as of April 24, 2002.
51. "CIHC Guarantee of Senior Credit Facility" means that CIHC guarantee of
the Senior Credit Facility.
52. "CIHC Guarantee of Senior Credit Facility Claims" means any and all
Claims derived from or based upon the CIHC Guarantee of Senior Credit Facility.
53. "CIHC Unsecured Distribution Cap" means the lesser of (A) 1.00 and (B)
a number equal to (i) $3.8 billion, less the Allowed Class 5A Lender Claims,
divided by (ii) the sum of Allowed Class 6B Reorganizing Debtor General
Unsecured Claims and Total Exchange Note Claims.
54. "CIHC Unsecured Distribution" means a percentage of the New CNC Common
Stock to be issued on the Effective Date equal to the product of (1) (A) the
amount of Allowed Class 6B Reorganizing Debtor General Unsecured Claims, divided
by (B) $3.8 billion less the sum of (x) the Total Bank Debt Balance plus (y) the
amount of Allowed Class 4A 93/94 Note Claims, multiplied by (2) the CIHC
Unsecured Distribution Cap.
55. "CIHC/CFC Intercompany Note" means the $400 million original principal
amount note dated May 11, 2002, issued by CIHC to CFC, with approximately
$315,030,986 in principal and accrued but unpaid interest as of the Petition
Date.
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56. "CIHC/CNC Intercompany Payables" means certain payables owed by CIHC to
CNC, including $88,202,660 on account of cash transfers, $523,785,034 on account
of intercompany notes payable, $159,087,485 on account of accrued but unpaid
interest on intercompany notes and $272,600 on account of accrued but unpaid
dividends on certain preferred stock.
57. "Claim" means a claim (as defined in section 101(5) of the Bankruptcy
Code) against a Debtor, including, but not limited to: (a) any right to payment
from a Debtor whether or not such right is reduced to judgment, liquidated,
unliquidated, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured; or (b) any right to an equitable remedy for
breach of performance if such performance gives rise to a right of payment from
a Debtor, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
58. "Claims Objection Bar Date" means the one hundred and eightieth day
following the Confirmation Date.
59. "Class" means a category of Holders of Claims or Equity Interests as
set forth in Article III herein (including, in the case of Class 5A and Class
4B, each subclass thereof).
60. "Class 4A Notice" means a notice Filed with the Bankruptcy Court that
discloses the treatment of the 93/94 Notes.
61. "CNC" means Conseco Inc., an Indiana corporation.
62. "CNC Guarantee of D&O Credit Facilities" means, collectively, the
guarantees by CNC of the D&O Credit Facilities.
63. "CNC Guarantees of Trust Preferred Securities" means the limited and
subordinated guarantees by CNC of the Trust Preferred Securities, which
guarantees were limited to the extent that the issuing Trust had funds available
for such distributions.
64. "CNC Guarantee of Trust Preferred Securities Claims" means any and all
Claims derived from or based upon the CNC Guarantees of Trust Preferred
Securities. Pursuant to its terms, the CNC Guarantee of Trust Preferred
Securities is limited to the extent the Trusts have funds available for
distribution. As of the Petition Date, the Trusts had no funds available for
distribution and, therefore, the CNC Guarantee of Trust Preferred Securities
Claims are Allowed in the amount of $0.
65. "CNC Old CIHC Preferred Stock Interests" means any and all Interests of
CNC in the Old CIHC Preferred Stock.
66. "CNC Unsecured Distribution" means a percentage of the New CNC Common
Stock equal to the result of (A) the CNC Unsecured Numerator, divided by (B)
$3.8 billion less (i) Allowed Class 5A Lender Claims plus (ii) the difference
between Total Bank Debt Balance and Allowed Class 5A Lender Claims.
67. "CNC Unsecured Numerator" means an amount equal to the product of (A)
the result of (i) $140 million (the assumed amount of Allowed Class 8A
Reorganizing Debtor General Unsecured Claims) divided by (ii) the sum of (w)
$140 million (the assumed amount of Allowed Class 8A Reorganizing Debtor General
Unsecured Claims), (x) Allowed Class 7A Original Note Claims, (y) Total Exchange
Note Claims multiplied by 1.7 and (z) Allowed Class 10A Trust Related Claims,
multiplied by (B) the First Stepdown Amount, provided however that the CNC
Unsecured Numerator shall not exceed $39.4 million.
68. "Confirmation" means the entry of the Confirmation Order, subject to
all conditions specified in Article IX herein having been satisfied or waived
pursuant to Article IX herein.
69. "Confirmation Date" means the date upon which the Confirmation Order is
entered by the Bankruptcy Court in its docket, within the meaning of Bankruptcy
Rules 5003 and 9021.
7
70. "Confirmation Order" means the order of the Bankruptcy Court confirming
the Plan pursuant to section 1129 of the Bankruptcy Code.
71. "Confirmation Hearing" means the hearing at which the Confirmation
Order is considered by the Bankruptcy Court.
72. "Conseco Creditors Committee" means the Official Committee of Unsecured
Creditors of the Reorganizing Debtors.
73. "Consenting Parties" means, collectively, each Holder of a Claim (not
to include any TOPrS Holder) (i) who has accepted the Plan and is a Holder in a
Class that has, as a Class, voted to accept the Plan, or (ii) who (a) receives a
distribution of property if the Plan is Confirmed, and (b) has not properly and
timely submitted an Opt Out Notice; provided, however, that any person who is a
Participant with respect to the Stock Programs, as defined in Article V.K.5 of
the Plan, who is not an Ineligible Person, also defined in Article V.K.5 of the
Plan, will not become a Consenting Party until such Person executes an
Adjustment Agreement, as defined in Article V.K.5 of the Plan.
74. "Consummation" means the occurrence of the Effective Date.
75. "Convenience Class Claims" means (i) any Reorganizing Debtor General
Unsecured Claim that is under $500 or (ii) any Reorganizing Debtor General
Unsecured Claim in excess of $500, which by election of the Holder thereof
pursuant to such Holder's ballot elects to have its claim reduced to an amount
of $500 and to be treated in Class 9A or Class 7B.
76. "Creditor" means any Holder of a Claim.
77. "CTIHC" means CTIHC, Inc., a Delaware corporation.
78. "D&O Credit Facilities" means the 1997 D&O Credit Facility, the 1998
D&O Credit Facility, the 1998 Non-Refinanced D&O Credit Facility and the 1999
D&O Credit Facility.
79. "D&O Lenders" means those Holders of Allowed Claims based on, derived
from, or under the D&O Credit Facilities.
80. "D&O Transfer Agreement" means a transfer agreement as described in
Article III.C.4 hereof, to be executed on the Effective Date.
81. "Debtor" shall mean, as the context requires, any of the Reorganizing
Debtors.
82. "Debtors" means the Reorganizing Debtors, as debtors in the Chapter 11
Cases.
83. "Debtors in Possession" means the Reorganizing Debtors, as debtors in
possession in the Chapter 11 Cases.
84. "Declaration of Trust" means the declaration of trust to be executed
and delivered by CNC and accepted by the Residual Trustee on the Effective Date
in substantially the form contained in the Plan Supplement.
85. "Deemed" means, for any particular Claim, (a) the scheduled amount of
the Claim, unless a proof of claim was Filed, in which case the proof of claim
amount supersedes the scheduled amount, (b) the amount asserted in Filed proofs
of claim for which there are not corresponding scheduled amounts, and (c) if a
Filed proof of claim does not assert a sum certain the Deemed amount shall be
determined by court order. In all events, if the amount of a Claim is determined
or estimated for any purposes by Final Order or stipulation, then that amount
shall be the Deemed amount for that Claim.
8
86. "Discharged Intercompany Claims" means those intercompany claims and
interests which are not Reinstated Intercompany Claims, including, but not
limited to, the CNC Old CIHC Preferred Stock Interests.
87. "Disclosure Statement" means the Disclosure Statement for Plan of
Reorganization of the Debtors under Chapter 11 of the Bankruptcy Code dated
January 31, 2003, as amended, supplemented, or modified from time to time,
describing the Plan, that is prepared and distributed in accordance with
sections 1125, 1126(b) and/or 1145 of the Bankruptcy Code and Bankruptcy Rule
3018 and/or other applicable law.
88. "Disputed" means, with respect to any Claim or Equity Interest, any
Claim or Equity Interest that is not Allowed.
89. "Distribution Agent" means Old CNC or entity or entities chosen by Old
CNC to make or to facilitate distributions required by the Plan.
90. "Distribution Record Date" means the date for determining which Holders
of Claims and Equity Interests are eligible to receive distributions hereunder,
and shall be the Confirmation Date or such other date as designated in an order
of the Bankruptcy Court.
91. "Effective Date" means the date selected by the Debtors and consented
to by the Conseco Creditors Committee, which is a Business Day after the
Confirmation Date on which: (a) no stay of the Confirmation Order is in effect,
and (b) all conditions specified in Article IX herein have been (i) satisfied or
(ii) waived pursuant to Article IX.C.
92. "Entity" means an entity as defined in section 101(15) of the
Bankruptcy Code.
93. "Equity Interest" means all equity interests in any of the Reorganizing
Debtors, including, but not limited to, all issued, unissued, authorized or
outstanding shares of stock, together with any warrants, options or contract
rights to purchase or acquire such interests at any time.
94. "Estates" means the estates of the Debtors created by section 541 of
the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
95. "Exchange Notes" means, collectively, the (i) 8.5% Exchange Notes; (ii)
6.4% Exchange Notes; (iii) 8.75% Exchange Notes; (iv) 6.8% Exchange Notes; (v)
9.0% Exchange Notes; and (vi) 10.75% Exchange Notes.
96. "Exchange Note Claims" means any and all Claims derived from or based
upon the Exchange Notes.
97. "Exchange Note Distribution" means a percentage of the New CNC Common
Stock to be issued on the Effective Date equal to the result of (A) Exchange
Note Numerator, divided by (B) $3.8 billion less (i) the Allowed 5A Lender
Claims and plus (ii) the difference between Total Bank Debt Balance and Allowed
5A Lender Claims.
98. "Exchange Note Numerator" means an amount equal to the product of (A)
the result of (i) the Total Exchange Note Claims multiplied by 1.7, divided by
(ii) the sum of (w) Allowed Class 7A Original Note Claims, plus the Total
Exchange Note Claims multiplied by 1.7, multiplied by (B) the Second Stepdown
Amount.
99. "File" or "Filed" means file or filed with the Bankruptcy Court in the
Chapter 11 Cases.
100. "Final Decree" means the decree contemplated under Bankruptcy Rule
3022.
101. "Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction with respect to the subject matter, which
has not been reversed, stayed, modified or amended, and as to which the time to
appeal or seek certiorari has expired and no appeal or petition for certiorari
has been timely taken,
9
or as to which any appeal that has been taken or any petition for certiorari
that has been or may be filed has been resolved by the highest court to which
the order or judgment was appealed or from which certiorari was sought,
provided, however, that if the lower court order is not stayed, then the lower
court order shall be deemed a Final Order.
102. "Finance Company Creditors' Committee" means the official committee of
unsecured creditors appointed in the Finance Company Debtors' Cases.
103. "Finance Company Debtors" means Conseco Finance Corp., Conseco Finance
Servicing Corp., Conseco Finance Corp. - Alabama, Conseco Finance Credit Corp.,
Conseco Finance Consumer Discount Company, Conseco Finance Canada Holding
Company, Conseco Finance Canada Company, Conseco Finance Loan Company, Rice Park
Properties Corporation, Landmark Manufactured Housing, Inc., Conseco Finance Net
Interest Margin Finance Corp. I, Conseco Finance Net Interest Margin Finance
Corp. II, Green Tree Finance Corp. - Two, Conseco Agency of Nevada, Inc.,
Conseco Agency of New York, Inc., Green Tree Floorplan Funding Corp., Conseco
Agency, Inc., Conseco Agency of Alabama, Inc., Conseco Agency of Kentucky, Inc.,
Crum-Reed General Agency, Inc., Green Tree Finance Corp. - Five, Green Tree
Residual Finance Corp. I, and Conseco Finance Credit Card Funding Corp.
104. "Finance Company Debtors' Cases" means the chapter 11 bankruptcy
proceedings filed by the Finance Company Debtors.
105. "Finance Company Plan" means the plan of reorganization filed by the
Finance Company Debtors in the Finance Company Debtors' Cases, as amended from
time to time.
106. "First Stepdown Amount" means $3.8 billion, less (i) the Allowed Class
5A Lender Claims, (ii) the difference between (x) Total Bank Debt Balance and
(y) Allowed Lender Claims, (iii) the Allowed Class 6B Reorganizing Debtor
General Unsecured Claims, (iv) the Allowed Class 4A 93/94 Note Claims and (v)
the aggregate amount of the Convenience Class Claims.
107. "GM Building" means the office building commonly known as the GM
Building, located at 767 5th Avenue, New York, New York 10153.
108. "Guarantees of D&O Credit Facilities" means, collectively, the CNC
Guarantee of D&O Credit Facilities and CIHC Guarantee of D&O Credit Facilities.
109. "Guarantee of Senior Notes" means the CIHC Guarantee of the Senior
Notes.
110. "Holder" means a Person or Entity holding an Equity Interest or Claim.
111. "Holding Company Shared Recovery Allocation Amount" means 30% of the
Cash or assets in the Shared Recovery Escrow Account (as defined in the Finance
Company Plan).
112. "Impaired" means with respect to any Class of Claims or Equity
Interests, a Claim or Equity Interest that is impaired within the meaning of
section 1124 of the Bankruptcy Code.
113. "Impaired Claim" means a Claim classified in an Impaired Class.
114. "Insurance Subsidiary" means those subsidiaries of the Debtors
authorized or licensed to issue or write insurance.
115. "Lehman" means, collectively, Lehman ALI Inc., Lehman Brothers Inc.,
Lehman Commercial Paper Inc., and Lehman Brothers Holdings Inc. and their
affiliates.
116. "Lenders' Agents" means Bank of America, N.A. and JPMorgan Chase Bank,
in their respective roles as Administrative Agents under the Senior Credit
Facility and D&O Credit Facilities.
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117. "Lender Claims" means any and all Claims based on or derived from the
(i) Senior Credit Facility; (ii) CIHC Guarantee of Senior Credit Facility, (iii)
CNC Guarantee of D&O Credit Facilities, or (iv) CIHC Guarantee of D&O Credit
Facilities.
118. "Lender Subcommittee" means a subcommittee of the Conseco Creditors
Committee consisting of Bank of America, N.A., Angelo Gordon & Co. and The Bank
of New York, together with JPMorgan Chase Bank as an ex officio member of such
subcommittee.
119. "Lenders" means all Holders of Lender Claims, the Lenders' Agents, and
their respective officers, directors, employees, agents, professionals and
representatives.
120. "Management Incentive Plan" means a post-Effective Date management
incentive compensation plan on terms substantially as set forth in the Plan
Supplement, as such plan may be modified or supplemented after the Effective
Date by the Board of Directors of New CNC.
121. "Market Value" means the then average daily closing price of New CNC
Common Stock measured over the preceding 60 trading days.
122. "Master Ballots" mean the master ballots accompanying the Disclosure
Statement upon which Holders of Impaired Claims or Impaired Equity Interests
shall indicate their acceptance or rejection of the Plan in accordance with the
Voting Instructions.
123. "Net D&O Litigation Proceeds" means the aggregate of all net proceeds
and collections (net of costs, fees and expenses), whether by judgment,
settlement, or otherwise, from claims based on or derived from the D&O Credit
Facilities or other derivative claims brought by the Reorganized Debtors against
those current or former directors and officers of the Reorganizing Debtors or
Reorganized Debtors who are not eligible to participate in the programs
described in Article V.K.5 below.
124. "New CNC" means a corporation that is incorporated under the laws of
the State of Delaware and pursuant hereto.
125. "New CNC By-laws" means the by-laws of New CNC, substantially in the
form contained in the Plan Supplement.
126. "New CNC Charter" means the Certificate of Incorporation of New CNC,
substantially in the form contained in the Plan Supplement.
127. "New CNC Common Stock" means approximately 8,000,000,000 shares of
common stock in New CNC, par value $.01 per share, to be authorized pursuant to
the New CNC Charter of which approximately 101,000,000 shares shall be initially
issued pursuant hereto on the Effective Date.
128. "New CNC Common Stock Holdback" means the New CNC Common Stock held in
reserve, as of the Effective Date, for distributions to Holders of Class 4A, 8A,
and 6 B Claims and Equity Interests that are Disputed or do not assert a sum
certain. The Deemed amount shall determine the New CNC Common Stock Holdback.
129. "New CNC Preferred Stock" means Class A Preferred Stock of New CNC to
be distributed on the Effective Date to the Holders of Allowed Claims in Classes
5A-1, 5A-2, 4B-1 and 4B-2 pursuant to the Plan with terms substantially as set
forth in the Plan Supplement, and an initial liquidation preference equal to the
Remaining Bank Debt Balance.
130. "New CNC Warrant Agreement" means the warrant agreement substantially
in the form contained in the Plan Supplement.
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131. "New CNC Warrants" means those certain warrants of New CNC to be
distributed on the Effective Date to the Holders of Allowed Claims in Class 10A,
as described in Article V.I below, and substantially in the form contained in
the New CNC Warrant Agreement.
132. "New Credit Facility" means a senior secured Credit Agreement among
New CNC, as borrower, Bank of America, N.A., as Agent, and the Holders of Lender
Claims, substantially in the form included in the Plan Supplement providing for
the New Tranche A Bank Debt and the New Tranche B Bank Debt, the Security
Agreement (as defined in the New Credit Facility) among New CNC, Reorganized
CIHC and certain other subsidiaries of New CNC, as Guarantors, and Bank of
America, N.A., as Agent, and all other documents entered into in connection
therewith or contemplated thereby.
133. "New Senior Notes" means the new senior notes issued by CNC with terms
substantially as set forth in the Class 4 A Notice and in the 93/94 Notes Term
Sheet.
134. "New Tranche A Bank Debt" means that portion of indebtedness of New
CNC under the New Credit Facility that constitutes Tranche A Term Loans as
defined therein having a principal amount of $1 billion.
135. "New Tranche B Bank Debt" means that portion of the indebtedness of
New CNC under the New Credit Facility that constitutes Tranche B Term Loans as
defined therein in a principal amount equal to the New Tranche B Bank Debt
Amount.
136. "New Tranche B Bank Debt Amount" means $300 million.
137. "Nominee" means any broker, dealer, commercial bank, trust company,
savings and loan, financial institution or other nominee in whose name
securities were registered or held of record on behalf of a Beneficial Holder.
138. "Non-D&O Lenders" means Holders of Allowed Lender Claims based on,
derived from, or under the Senior Credit Facility.
139. "Noteholder Subcommittee" means a subcommittee of the Conseco
Creditors Committee consisting of Appaloosa Management, L.P., HSBC Bank USA, and
First Pacific Advisors, Inc., together with Allfirst Trust Company, N.A. as an
ex officio member of such subcommittee.
140. "Official Committees" means the Conseco Creditors Committee and the
TOPrS Committee.
141. "Old CIHC Common Stock" means all of the issued and outstanding shares
of common stock of CIHC as of immediately prior to the Effective Date.
142. "Old CIHC Common Stock Interest" means all Equity Interests evidenced
by Old CIHC Common Stock.
143. "Old CIHC Preferred Stock" means all issued and outstanding shares of
preferred stock of CIHC as of immediately prior to the Effective Date.
144. "Old CNC" means CNC or any successor thereto (other than New CNC), by
merger, consolidation or otherwise, on and after the Effective Date.
145. "Old CNC Common Stock" means all of the issued and outstanding shares
of CNC common stock, as of immediately prior to the Effective Date.
146. "Old CNC Common Stock Interest" means all Equity Interests evidenced
by Old CNC Common Stock.
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147. "Old CNC Other Preferred Stock" means all preferred Equity Interests
in Old CNC that are not Series F Preferred Stock.
148. "Old CNC Other Preferred Stock Interests" means all Equity Interests
evidenced by the Old CNC Other Preferred Stock.
149. "Old CNC Preferred Stock" means all Equity Interests evidenced by (i)
the Old CNC Series F Preferred Stock and (ii) the Old CNC Other Preferred Stock.
150. "Old CNC Preferred Stock Interest" means all Equity Interests
evidenced by Old CNC Preferred Stock.
151. "Old CNC Series F Preferred Stock" means those certain Equity
Interests evidenced by Series F preferred stock in Old CNC, as of immediately
prior to the Effective Date.
152. "Old CNC Series F Preferred Stock Interests" means all Equity
Interests evidenced by Old CNC Series F Preferred Stock.
153. "Old CTIHC Common Stock" means all of the issued and outstanding
shares of CTIHC common stock, as of immediately prior to the Effective Date.
154. "Old CTIHC Common Stock Interest" means all Equity Interests evidenced
by Old CTIHC Common Stock.
155. "Old PHG Common Stock" means all of the issued and outstanding shares
of PHG common stock, as of immediately prior to the Effective Date.
156. "Old PHG Common Stock Interest" means all Equity Interests evidenced
by Old PHG Common Stock.
157. "Opt Out Notice" means those certain notices, approved by the
Bankruptcy Court, to be sent to Holders of Allowed Class 4A, 5A, 6A, 7A, 8A, 4B,
5B, and 6B Claims, giving such Holders the option to opt out of the release
provision set forth in Article X.C hereof.
158. "Original Notes Distribution" means a percentage of the New CNC Common
Stock to be issued on the Effective Date equal to the result of (A) Original
Notes Numerator, divided by (B) $3.8 billion less (i) the Allowed 5A Lender
Claims, plus (ii) the difference between Total Bank Debt Balance and Allowed 5A
Lender Claims.
159. "Original Notes" means, collectively: (i) 8.5% Original Notes; (ii)
6.4% Original Notes; (iii) 8.75% Original Notes; (iv) 6.8% Original Notes; (v)
9.0% Original Notes; and (vi) 10.75% Original Notes.
160. "Original Notes Numerator" means an amount equal to the product of (A)
the result of (i) the Allowed Class 7A Original Note Claims divided by (ii) the
sum of (w) Allowed Class 7A Original Note Claims, plus the Total Exchange Note
Claims multiplied by 1.7, multiplied by (B) the Second Stepdown Amount.
161. "Other Priority Claims" means any and all Claims accorded priority in
right of payment under section 507(a) of the Bankruptcy Code, other than a
Priority Tax Claim or an Administrative Claim.
162. "Other Secured Claims" means any and all Secured Claims against the
Debtors not specifically described herein, excluding, without limiting the
generality of the foregoing, the 93/94 Note Claims and the Lender Claims arising
under or derived from the 1999 D&O Credit Facility.
163. "Person" means an individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, limited liability
partnership, trust, trustee, United States Trustee, estate,
13
unincorporated organization, government, governmental unit (as defined in the
Bankruptcy Code), agency, or political subdivision thereof, or other entity.
164. "Petition Date" means December 17, 2002.
165. "PHG" means Partners Health Group, Inc., an Illinois corporation.
166. "Plan" means this Joint Plan of Reorganization pursuant to Chapter 11
of the Bankruptcy Code, together with all exhibits hereto, either in its present
form or as it may be altered, amended, modified or supplemented from time to
time in accordance with the terms hereof, the Bankruptcy Code and the Bankruptcy
Rules.
167. "Plan Supplement" means the compilation of documents and form of
documents, schedules and exhibits to be Filed prior to the hearing on the
Disclosure Statement, as modified or supplemented prior to the Confirmation
Hearing in accordance with Article XII.A of the Plan.
168. "Plan Value" means $3.8 billion as the value of New CNC.
169. "Priority Tax Claim" means a Claim of a governmental unit of the kind
specified in section 507(a)(8) of the Bankruptcy Code.
170. "Professional Escrow Account" means an interest-bearing savings
account funded and maintained by the Reorganized Debtors on and after the
Effective Date solely for the purpose of paying all fees and expenses of
Professionals in these Chapter 11 Cases.
171. "Professional", or collectively "Professionals" means a Person or
Entity (a) employed pursuant to a Final Order in accordance with sections 327
and 1103 of the Bankruptcy Code and to be compensated for services rendered
prior to the Confirmation Date, pursuant to sections 327, 328, 329, 330 and 331
of the Bankruptcy Code, or (b) for which compensation and reimbursement has been
allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy
Code.
172. "Pro Rata" means the proportion that an Allowed Claim or an Allowed
Equity Interest in a particular Class bears to the aggregate amount of Allowed
Claims or the aggregate number of Allowed Equity Interests in such Class.
173. "Registration Rights Agreement" means agreements entered into by New
CNC for the benefit of certain holders of New CNC Preferred Stock and New CNC
Common Stock, substantially in the form set forth in the Plan Supplement.
174. "Reinstated CIHC Preferred Stock" means such preferred stock issued by
CIHC to certain CIHC non-debtor insurance subsidiaries, pursuant to which
amounts owed to certain CIHC non-debtor insurance subsidiaries include (i)
$43,387,976 owed to Bankers Life and Casualty Company, $35,300,140 owed to
Conseco Annuity Assurance Company and $16,986,835 owed to Conseco Life Insurance
Company on account of 1994 series preferred stock, (ii) $10,224,000 owed to
Bankers Life and Casualty Company, $23,004,000 owed to Conseco Life Insurance
Company and $12,780,000 owed to Washington National Insurance Company on account
of 1998 series preferred stock, and (iii) $4,709,250 owed to Conseco Life
Insurance Company on account of the CIHC $2.32 redeemable callable preferred
stock.
175. "Reinstated CIHC Preferred Stock Dividends" means those amounts owed
to certain CIHC non-debtor insurance subsidiaries on account of accrued but
unpaid dividends on Reinstated CIHC Preferred Stock.
176. "Reinstated CIHC Preferred Stock Interest" means all Equity Interests
evidenced by Reinstated CIHC Preferred Stock.
14
177. "Reinstated Intercompany Claims" means those intercompany Claims set
forth on Exhibit G to the Disclosure Statement, including, but not limited to
the Reinstated CIHC Preferred Stock Dividends, plus any Claims arising from
executory contracts (i) between or among the Debtors or (ii) between or among a
Debtor or Debtors and an Insurance Subsidiary or Insurance Subsidiaries of the
Debtors which have been assumed on or prior to the Effective Date, including but
not limited to intercompany tax sharing agreements.
178. "Releasees" means all current and former officers, directors,
employees, attorneys, financial advisors, accountants, investment bankers,
agents and representatives of the Reorganizing Debtors and their subsidiaries
except for (i) the Finance Company Debtors and (ii) the subsidiaries of the
Finance Company Debtors, in each case in their capacity as such, and only if
serving in one such capacity on the Petition Date or thereafter.
179. "Remaining Bank Debt Balance" means the Total Bank Debt Balance minus
(i) the aggregate initial principal amount of New Tranche A Bank Debt and New
Tranche B Bank Debt and (ii) any portion of the Allowed Lender Claims paid in
cash on the Effective Date under the Plan.
180. "Reorganized CIHC" means CIHC, or any successor thereto, by merger,
consolidation, or otherwise, on and after the Effective Date.
181. "Reorganized Debtors" means the Reorganizing Debtors and New CNC, in
each case, on or after the Effective Date.
182. "Reorganizing Debtor" shall mean, as the context requires, CIHC, CNC,
CTIHC and/or PHG (collectively, the "Reorganizing Debtors").
183. "Reorganizing Debtor General Unsecured Claims" means any Claim against
the Reorganizing Debtors that is not a/an: (i) Administrative Claim; (ii)
Priority Tax Claim; (iii) Other Priority Claim; (iv) Other Secured Claim; (v)
Secured Claim; (vi) Reinstated Intercompany Claim; (vii) 93/94 Note Claim (to
the extent secured); (viii) Lender Claim; (ix) Exchange Note Claim; (x) Original
Note Claim; (xi) Convenience Class Claim; (xii) Trust Related Claim; (xiii)
Discharged Intercompany Claim; or (xiv) Securities Claim. Without limiting the
generality of the foregoing, "Reorganizing Debtor General Unsecured Claims"
includes, without limitation, the CFC Residual Intercompany Claims (after giving
effect to Article VII.F hereof).
184. "Reorganizing Debtors" means CNC, CIHC, CTIHC and PHG.
185. "Reorganizing Subplans" means the individual Plans of reorganization,
provided herein, for each of the Reorganizing Debtors.
186. "Residual Assets" means only the following assets of Old CNC: the
Residual Subsidiaries and to the extent not included in the assets of the
Residual Subsidiaries, an amount of Cash required to satisfy (a) the reasonable
costs and expenses associated with the liquidation of Old CNC (including,
without limitation, the payment of any taxes, assessments, insurance premiums,
repairs, legal fees, Residual Trustee's fees and costs, rent, storage and sales
commissions), and (b) if applicable, the reasonable costs and expenses
associated with the Residual Trust.
187. "Residual Claims" means the Claims assigned to the Residual Trust
pursuant to the provisions herein.
188. "Residual Share" means the authorized capital stock of Old CNC, which
shall consist of a single share of common stock, no par value.
189. "Residual Subsidiaries" means those direct or indirect subsidiaries of
CNC set forth on the Residual Subsidiary Schedule contained in the Plan
Supplement.
190. "Residual Trust" means the grantor trust to be created on the
Effective Date to hold the equity interests in Old CNC.
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191. "Residual Trustee" means Wilmington Trust Company, who will be
appointed pursuant to the Declaration of Trust to serve as trustee of the
Residual Trust.
192. "Schedules" mean the schedules of assets and liabilities, schedules of
executory contracts, and the statement of financial affairs as the Bankruptcy
Court requires the Debtors to file pursuant to section 521 of the Bankruptcy
Code, the Official Bankruptcy Forms and the Bankruptcy Rules, as they may be
amended and supplemented from time to time.
193. "Second Stepdown Amount" means the First Stepdown Amount less (i) the
value of the CNC Unsecured Distribution and (ii) the value of the TOPrS
Settlement Equity Recovery based upon Plan Value.
194. "Secured Claim" means (a) a Claim that is secured by a lien on
property in which the Estate has an interest, which lien is valid, perfected and
enforceable under applicable law or by reason of a Final Order, or that is
subject to setoff under section 553 of the Bankruptcy Code, to the extent of the
value of the Creditor's interest in the Estate's interest in such property or to
the extent of the amount subject to setoff, as applicable, as determined
pursuant to section 506(a) of the Bankruptcy Code, or (b) a Claim Allowed under
this Plan as a Secured Claim.
195. "Securities Act" means the Securities Act of 1933, 15 U.S.C. sections
77a-77aa, as now in effect or hereafter amended, or any similar federal, state
or local law.
196. "Securities Claims" means Claims of the type described in, and subject
to subordination under, section 510(b) of the Bankruptcy Code, including any and
all Claims whatsoever, whether known or unknown, foreseen or unforeseen,
currently existing or hereafter arising, arising from rescission of a purchase
or sale of a security of the Debtors or an affiliate of the Debtors, for damages
arising from the purchase, sale or holding of such securities, or for
reimbursement, indemnification or contribution allowed under section 502 of the
Bankruptcy Code on account of such a Claim.
197. "Senior Credit Facility" means the $1,500,000,000 Five-Year Credit
Agreement dated as of September 25, 1998 among CNC, Bank of America, N.A., as
Agent, and the financial institutions signatory thereto, as amended,
supplemented, waived or otherwise modified from time to time, including, without
limitation, pursuant to the following instruments: Amendment dated as of
September 22, 2000, Amendment dated as of May 30, 2001, Amendment dated as of
March 20, 2002, Waiver No. 1 dated as of August 14, 2002, Waiver No. 2 dated as
of September 8, 2002 and Waiver No. 3 dated as of October 18, 2002. The Senior
Credit Facility is guaranteed by CIHC.
198. "Senior Management Employment Agreements" means, except as executives
otherwise agree, those employment agreements included in the Plan Supplement.
199. "Senior Management KERP" means that certain key employee retention
program described in the Debtors' motion for an order authorizing the Debtors to
implement a key employee retention program for senior management, filed February
5, 2003, and approved by the Bankruptcy Court on February 24, 2003.
200. "Senior Note Claims" means, collectively, the (i) Exchange Note Claims
and (ii) Original Note Claims.
201. "Stated Cure Amounts" means those cure amounts for contracts to be
assumed by the Debtors on or prior to the Effective Date, notice of which shall
be sent to affected contract counterparties no later than 10 days before the
Confirmation Hearing.
202. "Stated Intercompany Cure Amounts" means those Stated Cure Amounts
that relate to assumed contracts between the Debtors or between the Debtors and
their subsidiaries.
203. "Subordinated Debentures" means those certain subordinated deferrable
interest debentures that are held by the Trusts and issued under (A) a
subordinated indenture dated November 14, 1996 from CNC to State Street Bank and
Trust Company as successor trustee to Fleet National Bank, as trustee, as
supplemented and (B) a
16
subordinated indenture dated December 8, 1997 (as supplemented) between CNC and
the First National Bank of Chicago (n/k/a Bank One), including: (i) 9.16%
subordinated deferrable interest debentures dated November 14, 1996, due
November 30, 2026, (ii) 8.70% subordinated deferrable interest debentures dated
November 22, 1996, due November 15, 2026, (iii) 8.796% subordinated deferrable
interest debentures dated March 26, 1997, due April 1, 2027, (iv) 8.70%
subordinated deferrable interest debentures dated August 24, 1998, due September
30, 2028, (v) 9.00% subordinated deferrable interest debentures dated October
14, 1998, due December 31, 2028, (vi) 9.44% subordinated deferrable interest
debentures dated August 31, 1999, due September of 2029, and (vii) 6.75%
subordinated deferrable interest debentures due February 16, 2003.
204. "Subordinated Debenture Claims" means all Claims derived from or based
upon the Subordinated Debentures.
205. "TOPrS 9019 Motion" means that certain motion Filed in the Bankruptcy
Court seeking approval of the settlement as described in Article V.I hereof.
206. "TOPrS Appeals" means those appeals filed by the TOPrS Committee with
respect to (i) that certain order of the Bankruptcy Court dated July 16, 2003
[docket no. 4448], granting Debtors' motion for order approving amended
employment agreement with M. Bublitz; and (ii) that certain order of the
Bankruptcy Court dated June 18, 2003, ordering the dismissal of the TOPrS
Committee's adversary proceeding against Bank of America, N.A. and JPMorgan
Chase Bank, docketed in the Bankruptcy Court as adversary proceeding number
03-A-00659.
207. "TOPrS Committee" means the Official Committee of Trust Originated
Preferred Securities Holders.
208. "TOPrS Opt Out Notice" means that certain notice approved by the
Bankruptcy Court, to be sent to Holder of Allowed Class 10A Claims, giving such
Holders the option to opt out of the TOPrS Settlement.
209. "TOPrS Settlement D&O Litigation Recovery" means 45% of the Net D&O
Litigation Proceeds, in an aggregate amount not to exceed $30 million, payable
in (i) Cash, or (ii) in the sole discretion of New CNC, through the issuance of
New CNC Common Stock based on the Market Value of such New CNC Common Stock at
the time such payment is due and payable, on terms and conditions more fully
described in Article V.I hereof.
210. "TOPrS Settlement Equity Recovery" means 1.5% of the New CNC Common
Stock outstanding as of the Effective Date.
211. "TOPrS Settlement Recovery" means (i) the TOPrS Settlement D&O
Litigation Recovery Amount, (ii) the TOPrS Settlement Equity Recovery and (iii)
the New CNC Warrants. 212. "TOPrS Settlement Representative" means a member of
the TOPrS Committee or such other representative acceptable to the Debtors
designated in writing by the TOPrS Committee.
213. "Total Bank Debt Balance" means the aggregate amount of the Allowed
Lender Claims, plus all interest, Waiver Consideration and accrued but unpaid
interest thereon (at the contractual default rate), compounded monthly, through
the Effective Date in a manner consistent with the Senior Credit Facility and
D&O Credit Facilities. Such amount is intended to include all obligations under
the Senior Credit Facility and the D&O Credit Facilities, and the respective
guarantees thereof by CIHC that benefit from the contractual subordination of
other Allowed Claims.
214. "Total Exchange Note Claims" means the aggregate of the Allowed
Exchange Note Claims plus, to the extent permitted under the Bankruptcy Code,
interest through the Effective Date.
215. "Trust Preferred Securities" means the following securities that have
been issued by the Trusts: (i) 9.16% Trust Originated Preferred Securities, (ii)
8.70% Trust Pass-Through Securities, (iii) 8.796% Capital
17
Securities, (iv) 8.70% Trust Originated Preferred Securities, (v) 9% Trust
Originated Preferred Securities, (vi) 9.44% Trust Originated Preferred
Securities, and (vii) 6.75% Trust Originated Preferred Securities.
216. "Trust Indenture Act" means the Trust Indenture Act of 1939, 15 U.S.C.
section 77aaa, as now in effect or hereafter amended.
217. "Trust Related Claims" means collectively, (a) the Subordinated
Debenture Claims and (b) the CNC Guarantee of Trust Preferred Securities, and to
the extent related thereto, the Trust Preferred Securities.
218. "Trusts" means those certain Delaware business trusts which (a) issued
common securities to CNC, (b) issued the Trust Preferred Securities, and (c) are
the Holders of the Subordinated Debentures.
219. "Unimpaired" means, with respect to a Class of Claims or Equity
Interests, a Claim or Equity Interest that is unimpaired within the meaning of
section 1124 of the Bankruptcy Code.
220. "Unofficial Bank Committee" means that certain steering committee of
the Lenders formed prior to the Petition Date and comprised of Bank of America,
N.A., JPMorgan Chase Bank, The Bank of New York, Deutsche Bank, AG, Angelo,
Gordon and Co. L.P. and General Electric Capital Corporation.
221. "Unofficial Noteholder Committee" means that certain unofficial
committee of Noteholders formed prior to the Petition Date and comprised of
Appaloosa Management, L.P., Barclays Bank, Calvert Group, Ltd., First Pacific
Advisors, Inc., HSBC Bank USA, Metropolitan West Asset Management and
Whippoorwill Associates.
222. "Voting Deadline" means June 6, 2003, as extended from time to time.
223. "Voting Instructions" means the instructions for voting on the Plan
contained in the section of the Disclosure Statement entitled "SOLICITATION;
VOTING PROCEDURES" and in the Ballots and the Master Ballots.
224. "Waiver Consideration" means the aggregate amount of "Waiver
Consideration" as defined in each of the Waivers No. 2 dated as of September 8,
2002 with respect to the D&O Credit Facilities.
225. "Work-Down Plan" means the Conseco, Inc. 2000 Employee Stock Purchase
Program Work-Down Plan, and the Conseco, Inc. 2000 Non-Employee Stock Purchase
Program Work-Down Plan.
Article II.
ADMINISTRATIVE AND PRIORITY TAX CLAIMS AGAINST ALL OF THE DEBTORS
A. Administrative Claims
Subject to the provisions of sections 328, 330(a) and 331 of the Bankruptcy
Code, each Holder of an Allowed Administrative Claim will be paid the full
unpaid amount of such Allowed Administrative Claim in Cash (i) on the Effective
Date or as soon thereafter as is practicable, (ii) if such Administrative Claim
is Allowed after the Effective Date, on the date such Administrative Claim is
Allowed, or as soon thereafter as is practicable, or (iii) upon such other terms
as may be agreed upon by such Holder and the respective Reorganized Debtor or
otherwise upon an order of the Bankruptcy Court; provided that Allowed
Administrative Claims representing obligations incurred in the ordinary course
of business or otherwise assumed by the Debtors pursuant to the Plan will be
assumed on the Effective Date and paid or performed by the respective
Reorganized Debtor when due in accordance with the terms and conditions of the
particular agreements governing such obligations. The Reorganizing Debtors (and
the Reorganized Debtors) are not obliged to pay Administrative Claims (other
than the Administrative Claims of the U.S. Internal Revenue Service to the
extent the U.S. Internal Revenue Service is entitled to assert such claims under
applicable nonbankruptcy law) against any Finance Company Debtors.
18
Notwithstanding anything in this Plan to the contrary, the U.S. Internal
Revenue Service shall not be required to file an Administrative Claim for taxes
(or penalties and interest with respect to such taxes) for a tax period after
the Petition Date until the Reorganizing Debtors have first filed with the U.S.
Internal Revenue Service any and all required tax returns and the time for
assessment and collection of such liability, as provided under the nonbankruptcy
statutory authority governing such time limits, has expired.
B. Priority Tax Claims
On the Effective Date or as soon as practicable thereafter, each Holder of
an Allowed Priority Tax Claim due and payable on or prior to the Effective Date
shall be paid, at the option of the respective Debtor, (a) Cash in an amount
equal to the amount of such Allowed Priority Tax Claim, or (b) Cash over a
six-year period from the date of assessment as provided in section 1129(a)(9)(C)
of the Bankruptcy Code, with interest payable at a fixed rate determined as of
the Confirmation Date by the formula provided in section 6621(a)(2) of the
Internal Revenue Code and compounded daily (as provided in section 6622 of the
Internal Revenue Code). Any deferred payments made pursuant to section
1129(a)(9)(C) of the Bankruptcy Code shall be by equal monthly Cash payments
beginning on the first day of the calendar month following the Effective Date.
The amount of any Priority Tax Claim that is not an Allowed Claim or that is not
otherwise due and payable on or prior to the Effective Date, and the rights of
the Holder of such Claim, if any, to payment in respect thereof shall (x) be
determined in the manner in which the amount of such Claim and the rights of the
Holder of such Claim would have been resolved or adjudicated if the Chapter 11
Cases had not been commenced, (y) survive the Effective Date and Consummation of
the Plan as if the Chapter 11 Cases had not been commenced, and (z) not be
discharged pursuant to section 1141 of the Bankruptcy Code. If the Reorganizing
Debtors substantially default on the payments of a tax due to the U.S. Internal
Revenue Service under this Plan, then the total amount still owed to the U.S.
Internal Revenue Service under this Plan shall become due and payable, and the
U.S. Internal Revenue Service may collect such amount through the administrative
and judicial collection provisions of the Internal Revenue Code or as otherwise
permitted under nonbankruptcy law. In this context, "substantial default" shall
mean that the Reorganizing Debtors have defaulted on a series of Plan payments
to the U.S. Internal Revenue Service and have ceased making any payments under
the Plan, and, after receiving notice of such default from the U.S. Internal
Revenue Service, have not attempted to cure the default and satisfy their Plan
obligations.
Article III.
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS
A. Summary
The categories of Claims and Equity Interests listed below classify Claims
and Equity Interests in or against the Reorganizing Debtors for all purposes,
including voting, confirmation and distribution pursuant hereto and pursuant to
sections 1122 and 1123(a)(1) of the Bankruptcy Code. A Claim or Equity Interest
shall be deemed classified in a particular Class only to the extent that the
Claim or Equity Interest qualifies within the description of that Class and
shall be deemed classified in a different Class to the extent that any remainder
of such Claim or Equity Interest qualifies within the description of such
different Class. A Claim or Equity Interest is in a particular Class only to the
extent that such Claim or Equity Interest is Allowed in that Class and has not
been paid or otherwise satisfied prior to the Effective Date.
1. CNC: Summary of Classification and Treatment of Claims and Equity
Interests
------------ ------------------------------------------------------ ----------------- ----------------------
Class Claim Status Voting Right
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
1A Other Priority Claims Unimpaired Deemed to Accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
2A Other CNC Secured Claims Unimpaired Deemed to Accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
3A Reinstated Intercompany Claims Unimpaired Deemed to Accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
4A 93/94 Note Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
5A Lender Claims
------------ ------------------------------------------------------ ----------------- ----------------------
19
------------ ------------------------------------------------------ ----------------- ----------------------
Class Claim Status Voting Right
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
Subclass 5A-1 Impaired Entitled to vote
Subclass 5A-2 Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
6A Exchange Note Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
7A Original Note Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
8A Reorganizing Debtor General Unsecured Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
9A Convenience Class Claims Unimpaired Deemed to Accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
10A Trust Related Claims Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
11A Old CNC Preferred Stock Interests
Subclass 11A-1 Impaired Deemed to reject
Subclass 11A-2 Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
12A Old CNC Common Stock Interests Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
13A Discharged Intercompany Claims Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
14A Securities Claims Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
2. CIHC: Summary of Classification and Treatment of Claims and Equity
Interests
------------ ------------------------------------------------------ ----------------- ----------------------
Class Claim Status Voting Right
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
1B Other Priority Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
2B Other Secured Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
3B Reinstated Intercompany Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
4B Lender Claims
Subclass 4B-1 Impaired Entitled to vote
Subclass 4B-2 Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
5B Exchange Note Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
6B Reorganizing Debtor General Unsecured Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
7B Convenience Class Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
8B Reinstated CIHC Preferred Stock Interests Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
9B Old CIHC Common Stock Interests Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
10B Discharged Intercompany Claims Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
11B Securities Claims Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
3. CTIHC: Summary of Classification and Treatment of Claims and Equity
Interests
------------ ------------------------------------------------------ ----------------- ----------------------
Class Claim Status Voting Right
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
1C Other Priority Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
2C Other Secured Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
3C Reorganizing Debtor General Unsecured Claims Impaired Entitled to vote
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
4C Old CTIHC Common Stock Interests Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
4. PHG: Summary of Classification and Treatment of Claims and Equity
Interests
------------ ------------------------------------------------------ ----------------- ----------------------
Class Claim Status Voting Right
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
1D Other Priority Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
2D Other Secured Claims Unimpaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
3D Reorganizing Debtor General Unsecured Claims Impaired Deemed to accept
------------ ------------------------------------------------------ ----------------- ----------------------
------------ ------------------------------------------------------ ----------------- ----------------------
4D Old PHG Common Stock Interests Impaired Deemed to reject
------------ ------------------------------------------------------ ----------------- ----------------------
20
B. Classification and Treatment of Classified Claims and Equity Interests: CNC
1. Class 1A--Other Priority Claims
(a) Classification: Class 1A consists of the Other Priority Claims
against CNC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class 1A Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holders of the Allowed Other Priority Claim and
CNC, each Holder of an Allowed Class 1A Claim shall receive, in full and
final satisfaction of such Allowed Class 1A Claim, one of the following
treatments, in the sole discretion of CNC:
(i) CNC or the Distribution Agent will pay the Allowed Class 1A
Claim in full in Cash on the Effective Date or as soon thereafter as
is practicable; provided that, Class 1A Claims representing
obligations incurred in the ordinary course of business will be paid
in full in Cash when such Class 1A Claims become due and owing in the
ordinary course of business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class 1A is Unimpaired and the Holders of Class 1A Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
1A are not entitled to vote to accept or reject the Plan.
2. Class 2A--Other Secured Claims
(a) Classification: Class 2A consists of the Other Secured Claims
against CNC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Class 2A Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class 2A Claim and CNC, each Holder
of an Allowed Class 2A Claim shall receive, in full and final satisfaction
of such Allowed Class 2A Claim, one of the following treatments, in the
sole discretion of CNC:
(i) the Allowed Class 2A Claims shall be reinstated as an
obligation of New CNC;
(ii) CNC shall surrender all collateral securing such Claim to
the Holder thereof, without representation or warranty by or further
recourse against CNC; provided that, such surrender must render such
Claim Unimpaired pursuant to section 1124 of the Bankruptcy Code; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
On the Effective Date or as soon as practicable thereafter, the
Allowed Class 2A Claims of the U.S. Internal Revenue Service, if any, shall
be paid, at the option of the respective Reorganizing Debtor or Reorganized
Debtor, (a) Cash in an amount equal to the amount of such Allowed Class 2A
Claim, or (b) Cash over a six-year period from the date of assessment of
the tax to which the claim relates, with interest payable at a fixed rate
determined as of the Confirmation Date by the formula provided in section
6621(a)(2) of the Internal Revenue Code and compounded daily (as provided
in section 6622 of the Internal Revenue Code). Any deferred payments made
pursuant to this provision of the Plan shall be by equal monthly Cash
payment beginning on the first day of the calendar month following the
Effective Date.
Notwithstanding any other provision of this Plan, any oversecured
Allowed Class 2A Claim of the U.S. Internal Revenue Service shall be
entitled to postpetition interest at the rate provided for in section
6621(a)(2) of the Internal Revenue Code up to the amount by which the value
of the property securing the
21
oversecured Allowed Class 2A Claim of the U.S. Internal Revenue Service
exceeds the value of such claim.
The U.S. Internal Revenue Service shall retain the tax liens and
rights to setoff securing its Allowed Class 2A Claims and, in the event the
Reorganizing Debtors substantially default on the payment of such claims
(as provided for in this Plan), then the total amount still owed to the
U.S. Internal Revenue Service under this Plan shall become due and payable,
and the U.S. Internal Revenue Service may collect such amount through the
administrative or judicial collection provisions of the U.S. Internal
Revenue Code or as otherwise permitted under nonbankruptcy law. In this
context, "substantial default" shall mean that the Reorganizing Debtors
have defaulted on a series of Plan payments to the U.S. Internal Revenue
Service and have ceased making any payments under the Plan, and, after
receiving notice of such default from the U.S. Internal Revenue Service,
have not attempted to cure the default and satisfy their Plan obligations.
(c) Voting: Class 2A is Unimpaired and the Holders of Class 2A Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
2A are not entitled to vote to accept or reject the Plan.
3. Class 3A--Reinstated Intercompany Claims
(a) Classification: Class 3A consists of the Reinstated Intercompany
Claims against CNC.
(b) Allowance: The Reinstated Intercompany Claims are Allowed in the
amount of the Reinstated CIHC Preferred Stock Dividends plus all Stated
Intercompany Cure Amounts.
(c) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class 3A Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holder of such Claim and CNC, each Allowed Class
3A Claim shall be reinstated as obligations of New CNC in full and final
satisfaction of such Class 3A Claim. The relevant agreements, instruments
and documents underlying Allowed Class 3A Claims will be also be
unimpaired.
(d) Voting: Class 3A is Unimpaired and the Holders of Class 3A Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
3A are not entitled to vote to accept or reject the Plan.
4. Class 4A--93/94 Note Claims
(a) Classification: Class 4A consists of the 93/94 Note Claims against
CNC.
(b) Treatment: Pursuant to the Class 4A Notice, in full and final
satisfaction of their Claims against the Reorganizing Debtors and the
Finance Company Debtors, Holders of Allowed 93/94 Note Claims shall receive
a distribution specified under the Finance Company Plan and shall receive
no distribution under this Plan, and shall be deemed to release all
prepetition liens on any assets of, and all security interests they may
have held in or against, the Debtors or any of the Debtors' Subsidiaries or
their respective assets as of the Petition Date, including, but not limited
to, the CFC/CIHC Intercompany Note.
(c) Voting: Class 4A is Impaired and the Holders of Class 4A Claims
are entitled to vote to accept or reject the Plan.
5. Class 5A--Lender Claims
(a) Classification: Class 5A consists of two subclasses of the Lender
Claims against CNC: Lender Claims under or derived from the 1999 D&O Credit
Facility (Class 5A-1), which are partially Secured Claims, and all other
Lender Claims (Class 5A-2).
22
(b) Allowance: The respective Class 5A Claims are Allowed for all
purposes of the Chapter 11 Cases, without the need to File proofs of claim,
in the amount of the Allowed Lender Claims, but due to the contractual
subordination of certain other Allowed Claims, distributions will be made
on account of the Total Bank Debt Balance, and such Allowed Class 5A Claims
and the distributions hereunder in respect of Class 5A Claims shall not be
subject to offset, reduction or counterclaim in any respect.
(c) Treatment: On or as soon as practicable after the Effective Date,
(i) each Holder of an Allowed Class 5A-1 Claim shall receive on account of
its Allowed Class 5A-1 Claim and its related Allowed Class 4B-1 Claim, the
treatment as set forth for Class 4B-1 in Article III.C.4 below, and (ii)
each Holder of an Allowed Class 5A-2 Claim shall receive on account of its
Allowed Class 5A-2 Claim and its related Allowed Class 4B-2 Claim, the
treatment as set forth for Class 4B-2 in Article III.C.4 below. Such
treatments shall be in full and final satisfaction of all Class 5A Claims.
In addition, immediately prior to the Effective Date, but subject in all
respects to the immediate occurrence of the Effective Date, the Holders of
Class 5A Claims shall be deemed to release all prepetition liens on and
security interests in the CFC/CIHC Intercompany Note.
(d) Voting: Classes 5A-1 and 5A-2 are Impaired Classes and Holders of
Class 5A-1 and 5A-2 Claims are entitled to vote separately to accept or
reject the Plan.
6. Class 6A--Exchange Note Claims Against CNC
(a) Classification: Class 6A consists of the Exchange Note Claims
against CNC.
(b) Allowance: The Class 6A Claims are Allowed for all purposes under
this Plan, without the need to File proofs of claim, along with Class 5B
Claims, in an aggregate amount of $1,370,975,431.97, but to the extent that
the Holders of Exchange Note Claims are entitled to postpetition interest
under the Bankruptcy Code, distributions will be made on account of the
Total Exchange Note Claims. Allowed Class 6A Claims and the distributions
hereunder in respect thereof shall not be subject to offset, reduction or
counterclaim in any respect.
(c) Treatment: On or as soon as practicable after the Effective Date,
each Holder of an Allowed Class 6A Claim shall receive in full and final
satisfaction of all such Allowed Class 6A Claims, and related Allowed Class
5B Claims, the treatment set forth for Class 5B in Article III.C.5 below.
(d) Voting: Class 6A is Impaired and Holders of Class 6A Claims are
entitled to vote to accept or reject the Plan.
7. Class 7A--Original Note Claims
(a) Classification: Class 7A consists of the Original Note Claims
against CNC.
(b) Allowance: The Class 7A Claims are Allowed for all purposes under
this Plan, without the need to file Proofs of Claim, in an aggregate amount
of $1,242,444,895.76 and such Allowed Class 7A Claims and the distributions
hereunder in respect thereof shall not be subject to offset, reduction or
counterclaim in any respect.
(c) Treatment: On or as soon as practicable after the Effective Date,
each Holder of an Allowed Class 7A Claim shall receive, in full and final
satisfaction of all such Allowed Class 7A Claims, its Pro Rata share of the
Original Note Distribution. In addition, Houlihan Lokey Howard & Zukin and
any other professionals of the Unofficial Noteholders Committee will be
paid on the Effective Date their unpaid fees and expenses (whether incurred
prior to or after the Petition Date) in accordance with their prepetition
engagement letters.
23
(d) Voting: Class 7A is Impaired and Holders of Class 7A Claims are
entitled to vote to accept or reject the Plan.
8. Class 8A - Reorganizing Debtor General Unsecured Claims
(a) Classification: Class 8A consists of the Reorganizing Debtor
General Unsecured Claims against CNC.
(b) Treatment: On or as soon as practicable after the Effective Date,
each Holder of an Allowed Class 8A Claim will receive, in full and final
satisfaction of all such Allowed Class 8A Claims, its Pro Rata share of the
CNC Unsecured Distribution.
(c) Voting: Class 8A is Impaired and Holders of Class 8A Claims are
entitled to vote to accept or reject the Plan.
9. Class 9A-- Convenience Class Claims
(a) Classification: Class 9A consists of the Convenience Class Claims
against CNC.
(b) Treatment: CNC will treat such Allowed Class 9A Claims in a manner
that will render such Claims Unimpaired by the Bankruptcy Code. Each holder
of an Allowed Class 8A Claim may elect to be treated as a Holder of an
Allowed Class 9A Convenience Class Claim. Any such election must be made on
the Ballot, and no Creditor can elect Class 9A Claim treatment after the
Voting Deadline. Each Holder of an allowed Class 9A Claim shall receive the
lesser of (i) $500 or (ii) the amount of their Allowed Class 8A Claim. Any
Allowed Class 8A Claim that exceeds $500, but whose Holder elects to be
treated as a Class 9A Claim shall be automatically reduced in complete
satisfaction of such Class 8A Claim to the amount of distribution made on
account of such Convenience Class Claim.
(c) Voting: Class 9A is Unimpaired and the Holders of Class 9A Claims
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code.
10. Class 10A-- Trust Related Claims
(a) Classification: Class 10A consists of the Trust Related Claims
against CNC.
(b) Allowance: The Subordinated Debenture Claims will be Allowed in
the aggregate amount of $2,019,100,000, but distributions thereon will be
made to the holders of the Trust Preferred Securities.
(c) Treatment: Class 10A is deemed to reject; provided that holders of
the Trust Preferred Securities shall receive the TOPrS Settlement Recovery,
as set forth in Article V.I, below, in settlement of all Class 10A Claims.
Restriction on recovery: The TOPrS Settlement Recovery being offered to
Class 10A is subject to contractual subordination between the Holders of
the Trust Related Claims, on the one hand, and the Lender Claims and Senior
Note Claims, on the other hand, and is being provided by the Holders of the
Lender Claims and Senior Note Claims in order to facilitate a consensual
Plan subject to and in accordance with the TOPrS Settlement. The TOPrS
Settlement Recovery is being provided with the consent of the Holders of
the Lender Claims and Senior Note Claims, subject to and in accordance with
the TOPrS Settlement. The Debtors reserve the right (i) to request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code and/or (ii) to modify the Plan in accordance with the terms
hereof.
(d) Voting: Class 10A is deemed to reject.
24
11. Class 11A--Old CNC Preferred Stock Interests
(a) Classification: Class 11A consists of the two subclasses of Old
CNC Preferred Stock Interests: Old CNC Series F Preferred Stock Interests
(Class 11A-1) and Old CNC Other Preferred Stock Interests (Class 11A-2).
(b) Treatment: On the Effective Date Class 11A-1 and 11A-2 Interests
will be cancelled and Holders thereof will not receive a distribution under
the Plan in respect of such Interests.
(c) Voting: Holders of Class 11A-1 and 11A-2 Interests are
conclusively deemed to reject the Plan and are not entitled to vote to
accept or reject the Plan.
12. Class 12A--Old CNC Common Stock Interests
(a) Classification: Class 12A consists of the Allowed Old CNC Common
Stock Interests.
(b) Treatment: On the Effective Date Class 12A Interests will be
cancelled and Holders thereof will not receive a distribution under the
Plan in respect of such Interests.
(c) Voting: Class 12A is Impaired and is conclusively deemed to reject
the Plan. Holders of Class 12A Old CNC Common Stock Interests are not
entitled to vote to accept or reject the Plan.
13. Class 13A-- Discharged Intercompany Claims
(a) Classification: Class 13A consists of the Discharged Intercompany
Claims against CNC.
(b) Treatment: Class 13A Claims will be cancelled and Holders thereof
will not receive a distribution under the Plan in respect of such Claims.
(c) Voting: Class 13A is Impaired and is conclusively deemed to reject
the Plan. Holders of Class 13A Discharged Intercompany Claims are not
entitled to vote to accept or reject the Plan.
14. Class 14A--Securities Claims
(a) Classification: Class 14A consists of the Securities Claims
against CNC.
(b) Treatment: Class 14A Claims will be cancelled and Holders thereof
will not receive a distribution under the Plan in respect of such Claims.
(c) Voting: Class 14A is Impaired, and is conclusively deemed to
reject the Plan. Holders of Class 14A Claims are not entitled to vote to
accept or reject the Plan.
C. Classification and Treatment of Classified Claims and Equity Interests:
CIHC
1. Class 1B--Other Priority Claims
(a) Classification: Class 1B consists of the Other Priority Claims
against CIHC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class 1B Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holder of the Allowed Other Priority Claim and
CIHC, each Holder of an Allowed Class 1B Claim shall receive, in full and
final satisfaction of such Allowed Class 1B Claim, one of the following
treatments, in the sole discretion of CIHC:
25
(i) Reorganized CIHC or such Distribution Agent will pay the
Allowed Class 1B Claim in full in Cash on the Effective Date or as
soon thereafter as is practicable; provided that, Class 1B Claims
representing obligations incurred in the ordinary course of business
will be paid in full in Cash when such Claim becomes due and owing in
the ordinary course of business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class 1B is Unimpaired and the Holders of Class 1B Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
1B are not entitled to vote to accept or reject the Plan.
2. Class 2B--Secured Claims
(a) Classification: Class 2B consists of the Secured Claims against
CIHC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Class 2B Claims are Unimpaired by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class 2B Claim and CIHC, each Holder
of an Allowed Class 2B Claim shall receive, in full and final satisfaction
of such Allowed Class 2B Claim, one of the following treatments, in the
sole discretion of CIHC:
(i) the Allowed Class 2B Claims shall be reinstated as an
obligation of Reorganized CIHC;
(ii) Reorganized CIHC or such Distribution Agent shall surrender
all collateral securing such Claim to the Holder thereof, without
representation or warranty by or further recourse against CIHC,
Reorganized CIHC or such Distribution Agent provided that, such
surrender must render such Claim Unimpaired pursuant to section 1124
of the Bankruptcy Code; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code;
On the Effective Date or as soon as practicable thereafter, the Allowed
Class 2B Claims of the U.S. Internal Revenue Service, if any, shall be paid, at
the option of the respective Reorganizing Debtor or Reorganized Debtor, (a) Cash
in an amount equal to the amount of such Allowed Class 2B Claim, or (b) Cash
over a six-year period from the date of assessment of the tax to which the claim
relates, with interest payable at a fixed rate determined as of the Confirmation
Date by the formula provided in section 6621(a)(2) of the Internal Revenue Code
and compounded daily (as provided in section 6622 of the Internal Revenue Code).
Any deferred payments made pursuant to this provision of the Plan shall be by
equal monthly Cash payment beginning on the first day of the calendar month
following the Effective Date.
Notwithstanding any other provision of this Plan, any oversecured Allowed
Class 2B Claim of the U.S. Internal Revenue Service shall be entitled to
postpetition interest at the rate provided for in section 6621(a)(2) of the
Internal Revenue Code up to the amount by which the value of the property
securing the oversecured Allowed Class 2B Claim of the U.S. Internal Revenue
Service exceeds the value of such claim.
The U.S. Internal Revenue Service shall retain the tax liens and rights to
setoff securing its Allowed Class 2B Claims and, in the event the Reorganizing
Debtors substantially default on the payment of such claims (as provided for in
this Plan), then the total amount still owed to the U.S. Internal Revenue
Service under this Plan shall become due and payable, and the U.S. Internal
Revenue Service may collect such amount through the administrative or judicial
collection provisions of the U.S. Internal Revenue Code or as otherwise
permitted under nonbankruptcy law. In this context, "substantial default" shall
mean that the Reorganizing Debtors have defaulted on a series of Plan payments
to the U.S. Internal Revenue Service and have ceased making any payments under
the
26
Plan, and, after receiving notice of such default from the U.S. Internal
Revenue Service, have not attempted to cure the default and satisfy their Plan
obligations.
(c) Voting: Class 2B is Unimpaired and the Holders of Class 2B Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
2B are not entitled to vote to accept or reject the Plan.
3. Class 3B--Reinstated Intercompany Claims
(a) Classification: Class 3B consists of the Reinstated Intercompany
Claims against CIHC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class 3B Claims are Unimpaired by the Plan. Unless
otherwise agreed to by the Holder of such Claim and CIHC, each Allowed
Class 3B Claim shall be reinstated by Reorganized CIHC in full and final
satisfaction of such Class 3B Claim.
(c) Voting: Class 3B is Unimpaired and the Holders of Class 3B Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
3B are not entitled to vote to accept or reject the Plan.
4. Class 4B-- Lender Claims
(a) Classification: Class 4B consists of two subclasses of the Lender
Claims against CIHC: Lender Claims under or derived from the 1999 D&O
Credit Facility (Class 4B-1), which are partially Secured Claims, and all
other Lender Claims (Class 4B-2).
(b) Allowance: The Class 4B Claims are Allowed for all purposes of the
Chapter 11 Cases, without the need to File proofs of claim, in the amount
of the Allowed Lender Claims, but due to the contractual subordination of
certain other Allowed Claims, distributions will be made on account of the
Total Bank Debt Balance, and such Allowed Class 4B Claims and the
distributions hereunder in respect of Class 4B Claims shall not be subject
to offset, reduction or counterclaim in any respect.
(c) Treatment: On or as soon as practicable after the Effective Date,
each Holder of an Allowed Class 4B Claim shall receive on account of and in
full and final satisfaction of its Allowed Class 4B Claim and its related
Allowed Class 5A Claim its Pro Rata share of the (i) New Tranche A Bank
Debt; (ii) the New Tranche B Bank Debt; and (iii) the New CNC Preferred
Stock; provided, however, that, in connection with the compromise and
settlement of the TOPrS Committee's objections to confirmation of the Plan
and certain Lender Claims, and in consideration of the contributions of the
Non-D&O Lenders to such compromise and the TOPrS Settlement, the amount of
the New CNC Preferred Stock distributable to each D&O Lender in respect of
its Lender Claims based on or derived from the D&O Credit Facilities shall
be reduced by such D&O Lender's pro rata share of New CNC Preferred Stock
having an initial liquidation preference of $7 million and the amount of
New CNC Preferred Stock distributable to each Non-D&O Lender in respect of
its Lender Claims based on or derived from the Senior Credit Facility shall
be increased by such Non-D&O Lender's pro rata share of New CNC Preferred
Stock having an initial liquidation preference of $7 million. CIHC will
guaranty the New Tranche A Bank Debt and the New Tranche B Bank Debt and
the obligations in respect thereof will be secured as contemplated by the
New Credit Facility. Such treatment shall be in full and final satisfaction
of all Class 4B and Class 5A Claims, and of any rights to contractual
subordination of other Allowed Claims for the benefit of Class 4B and Class
5A Claims. In addition, immediately prior to the Effective Date, but
subject in all respects to the immediate occurrence of the Effective Date,
the Holders of Class 4B and Class 5A Claims shall be deemed to release all
prepetition liens on and security interests in the CFC/CIHC Intercompany
Note. In addition, the Lenders' Agents and each of the Lenders shall
receive in Cash on the Effective Date an amount equal to all of its fees,
expenses and other amounts (including, without limitation, all fees and
expenses of counsel and financial advisors including, without limitation,
Greenhill & Co., LLC) payable in connection with the Senior Credit Facility
or the D&O Credit Facilities, as the case may be, including, without
limitation, in
27
connection with the Chapter 11 Cases, the Plan, the implementation of the
Plan or any documentation relating thereto. The New Tranche A Bank Debt and
New Tranche B Bank Debt shall be issued in separate tranches as follows:
(i) to Holders of Claims under the Senior Credit Facility, (ii) to Holders
of Claims under or derived from the 1999 D&O Facility and (iii) to Holders
of Claims under or derived from the other D&O Credit Facilities. The
Lenders under the respective D&O Credit Facilities shall be deemed to have
transferred to New CNC, pursuant to the terms of the D&O Transfer Agreement
to be executed on the Effective Date, all loans made to the individual
borrowers under the D&O Credit Facilities as a result of satisfaction of
the Guarantees of D&O Credit Facilities and all rights and remedies in
respect thereof to New CNC, and all amounts paid by such borrowers (net of
the TOPrS Settlement D&O Litigation Recovery, regardless of whether such
amounts are paid in cash or New CNC Stock under the terms of the TOPrS
Settlement) shall be applied to the loans under the New Credit Facility as
set forth in the New Credit Facility.
(d) Voting: Classes 4B-1 and 4B-2 are Impaired Classes and Holders of
Class 4B-1 and 4B-2 Claims are entitled to vote separately to accept or
reject the Plan.
5. Class 5B-- Exchange Note Claims
(a) Classification: Class 5B consists of the Exchange Note Claims
against CIHC.
(b) Allowance: Notwithstanding any provision to the contrary contained
in this Plan, the Class 5B Claims shall be deemed Allowed Class 5B Claims
for all purposes of the Chapter 11 Cases, without the need to File proofs
of claim, along with Class 6A Claims, in an aggregate amount of
$1,370,975,431.97, but to the extent that the Holders of Exchange Note
Claims are entitled to postpetition interest under the Bankruptcy Code,
distributions will be made on account of the Total Exchange Note Claims.
(c) Treatment: Each Holder of an Allowed Class 5B Claim shall receive
in full and final satisfaction of all such Allowed Class 6A and Class 5B
Claims, its Pro Rata share of (i) the Exchange Note Distribution on or as
soon as practicable after the Effective Date, and (ii) any Available
Proceeds, when and if such proceeds are available, as determined by the
Residual Trustee. In addition, Houlihan Lokey Howard & Zukin and any other
professionals of the Unofficial Noteholders Committee will be paid on the
Effective Date the unpaid fees and expenses (whether incurred prior to or
after the Petition Date) in accordance with their prepetition engagement
letters.
(d) Voting: Class 5B is Impaired and is entitled to vote to accept or
reject the Plan.
6. Class 6B--Reorganizing Debtor General Unsecured Claims
(a) Classification: Class 6B consists of the Reorganizing Debtor
General Unsecured Claims against CIHC, including the CIHC/CFC Intercompany
Note.
(b) Treatment: On or as soon as practicable after the Effective Date,
each Holder of an Allowed Class 6B Claim shall receive in full and final
satisfaction of such Class 6B Claims, its Pro Rata share of the CIHC
Unsecured Distribution.
(c) Voting: Class 6B is Impaired and Holders of Class 6B Claims are
entitled to vote to accept or reject the Plan.
7. Class 7B-- Convenience Class Claims
(a) Classification: Class 7B consists of the Convenience Class Claims
against CIHC.
(b) Treatment: CIHC will treat such Allowed 7B Claims in a manner that
will render such Claims Unimpaired under the Bankruptcy Code. Each Holder
of an Allowed Class 6B General Unsecured
28
Claim may elect to be treated as a Holder of an Allowed Class 7B
Convenience Class Claim. Any such election must be made on the Ballot, and
no Creditor can elect Class 7B Claim treatment after the Voting Deadline.
Each Holder of an Allowed Class 7B Claim shall receive the lesser of (i)
$500 or (ii) the amount of their Allowed Class 6B Claim. Any Allowed Class
6B Claim that exceeds $500 but whose Holder elects to be treated as a Class
7B Claim shall be automatically reduced in complete satisfaction of such
Class 6B Claim to the amount of distribution made on account of such
Convenience Class Claim.
(c) Voting: Class 7B is Unimpaired and the Holders of Class 7B Claims
are conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code.
8. Class 8B--Reinstated CIHC Preferred Stock Interests
(a) Classification: Class 8B consists of the Reinstated CIHC Preferred
Stock Interests.
(b) Treatment: Reorganized CIHC will reinstate the Allowed Reinstated
CIHC Preferred Stock Interests.
(c) Voting: Class 8B is Unimpaired and the Holders of Class 8B
Interests are conclusively deemed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Interests
in Class 8B are not entitled to vote to accept or reject the Plan.
9. Class 9B--Old CIHC Common Stock Interests
(a) Classification: Class 9B consists of the Old CIHC Common Stock
Interests.
(b) Treatment: Reorganized CIHC will reinstate the Allowed Old CIHC
Common Stock Interests.
(c) Voting: Class 9B is Unimpaired and the Holders of Class 9B Old
Common Stock Interests are conclusively deemed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders
of Interests in Class 9B are not entitled to vote to accept or reject the
Plan.
10. Class 10B-- Discharged Intercompany Claims
(a) Classification: Class 10B consists of the Discharged Intercompany
Claims against CIHC.
(b) Treatment: Class 10B Claims will be cancelled and the Holders
thereof will receive no distribution under the Plan in respect of such
Claims.
(c) Voting: Class 10B is Impaired and is conclusively deemed to reject
the Plan. Holders of Class 10B Discharged Intercompany Claims are not
entitled to vote to accept or reject the Plan.
11. Class 11B--Securities Claims
(a) Classification: Class 11B consists of the Securities Claims
against CIHC.
(b) Treatment: Class 11B will be cancelled and the Holders thereof
will receive no distribution under the Plan in respect of such Claims.
(c) Voting: Class 11B is Impaired, and is conclusively deemed to
reject the Plan. Holders of Class 11B Claims are not entitled to vote to
accept or reject the Plan.
29
D. Classification and Treatment of Classified Claims and Equity Interests:
CTIHC
1. Class 1C--Other Priority Claims
(a) Classification: Class 1C consists of the Other Priority Claims
against CTIHC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class 1C Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holder of the Allowed Other Priority Claim and
CTIHC, each Holder of an Allowed Class 1C Claim shall receive, in full and
final satisfaction of such Allowed Class 1C Claim, one of the following
treatments, in the sole discretion of CTIHC:
(i) the Distribution Agent will pay the Allowed Class 1C Claim in
full in Cash on the Effective Date or as soon thereafter as is
practicable, provided that, Class 1C Claims representing obligations
incurred in the ordinary course of business will be paid in full in
Cash when such Class 1C Claims become due and owing in the ordinary
course of business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class 1C is Unimpaired and the Holders of Class 1C Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
1C are not entitled to vote to accept or reject the Plan.
2. Class 2C--Secured Claims
(a) Classification: Class 2C consists of the Secured Claims against
CTIHC.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Class 2C Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class 2C Claim and CTIHC, each
Holder of an Allowed Class 2C Claim shall receive, in full and final
satisfaction of such Allowed Class 2C Claim, one of the following
treatments, in the sole discretion of CTIHC:
(i) the Allowed Class 2C Claims shall be reinstated as an
obligation of Reorganized CTIHC;
(ii) CTIHC shall surrender all collateral securing such Claim to
the Holder thereof, without representation or warranty by or recourse
against CTIHC or Reorganized CTIHC, provided that, such surrender must
render such Claim Unimpaired pursuant to Section 1124 of the
Bankruptcy Code; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
On the Effective Date or as soon as practicable thereafter, the Allowed
Class 2C Claims of the U.S. Internal Revenue Service, if any, shall be paid, at
the option of the respective Reorganizing Debtor or Reorganized Debtor, (a) Cash
in an amount equal to the amount of such Allowed Class 2C Claim, or (b) Cash
over a six-year period from the date of assessment of the tax to which the claim
relates, with interest payable at a fixed rate determined as of the Confirmation
Date by the formula provided in section 6621(a)(2) of the Internal Revenue Code
and compounded daily (as provided in section 6622 of the Internal Revenue Code).
Any deferred payments made pursuant to this provision of the Plan shall be by
equal monthly Cash payment beginning on the first day of the calendar month
following the Effective Date.
30
Notwithstanding any other provision of this Plan, any oversecured Allowed
Class 2C Claim of the U.S. Internal Revenue Service shall be entitled to
postpetition interest at the rate provided for in section 6621(a)(2) of the
Internal Revenue Code up to the amount by which the value of the property
securing the oversecured Allowed Class 2C Claim of the U.S. Internal Revenue
Service exceeds the value of such claim.
The U.S. Internal Revenue Service shall retain the tax liens and rights to
setoff securing its Allowed Class 2C Claims and, in the event the Reorganizing
Debtors substantially default on the payment of such claims (as provided for in
this Plan), then the total amount still owed to the U.S. Internal Revenue
Service under this Plan shall become due and payable, and the U.S. Internal
Revenue Service may collect such amount through the administrative or judicial
collection provisions of the U.S. Internal Revenue Code or as otherwise
permitted under nonbankruptcy law. In this context, "substantial default" shall
mean that the Reorganizing Debtors have defaulted on a series of Plan payments
to the U.S. Internal Revenue Service and have ceased making any payments under
the Plan, and, after receiving notice of such default from the U.S. Internal
Revenue Service, have not attempted to cure the default and satisfy their Plan
obligations.
(c) Voting: Class 2C is Unimpaired and the Holders of Class 2C Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
2C are not entitled to vote to accept or reject the Plan.
3. Class 3C -- Reorganizing Debtor General Unsecured Claims against CTIHC
(a) Classification: Class 3C consists of the Reorganizing Debtor
General Unsecured Claims against CTIHC.
(b) Treatment: If there are any Allowed Class 3C Claims, Holders
thereof will receive a Pro Rata share of the Old CTIHC Common Stock.
(c) Voting: Class 3C is Impaired and Holders of Class 3C Reorganizing
Debtor General Unsecured Claims are entitled to vote to accept or reject
the Plan.
4. Class 4C-- Old CTIHC Common Stock Interests
(a) Classification: Class 4C consists of the Old CTIHC Common Stock
Interests.
(b) Treatment: Class 4C Interests will be allocated to the Holders of
Allowed Class 3C Claims, if any, and if none, shall be held by Reorganized
CIHC.
(c) Voting: Class 4C is Impaired and is conclusively deemed to reject
the Plan. Holders of Class 4C Old CTIHC Common Stock Interests are not
entitled to vote to accept or reject the Plan.
E. Classification and Treatment of Classified Claims and Equity Interests:
Partners Health Group, Inc.
1. Class 1D--Other Priority Claims
(a) Classification: Class 1D consists of the Other Priority Claims
against PHG.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Allowed Class 1D Claims are unaltered by the Plan. Unless
otherwise agreed to by the Holder of the Allowed Other Priority Claim and
PHG, each Holder of an Allowed Class 1D Claim shall receive, in full and
final satisfaction of such Allowed Class 1D Claim, one of the following
alternative treatments, in the sole discretion of PHG:
(i) the Distribution Agent will pay the Allowed Class 1D Claim in
full in Cash on the Effective Date or as soon thereafter as is
practicable, provided that, Class 1D Claims
31
representing obligations incurred in the ordinary course of business
will be paid in full in Cash when such Class 1D Claims become due and
owing in the ordinary course of business; or
(ii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
(c) Voting: Class 1D is Unimpaired and the Holders of Class 1D Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
1D are not entitled to vote to accept or reject the Plan.
2. Class 2D--Secured Claims
(a) Classification: Class 2D consists of the Secured Claims against
PHG.
(b) Treatment: The legal, equitable and contractual rights of the
Holders of Class 2D Claims are unaltered by the Plan. Unless otherwise
agreed to by the Holder of the Allowed Class 2D Claim and PHG, each Holder
of an Allowed Class 2D Claim shall receive, in full and final satisfaction
of such Allowed Class 2D Claim, one of the following alternative
treatments, in the sole discretion of PHG:
(i) the Allowed Class 2D Claims shall be reinstated as an
obligation of Reorganized PHG;
(ii) the Distribution Agent shall surrender all collateral
securing such Claim to the Holder thereof, without representation or
warranty by or recourse against PHG or Reorganized PHG, provided that,
such surrender must render such Claim Unimpaired pursuant to section
1124 of the Bankruptcy Code; or
(iii) such Claim will be treated in any other manner so that such
Claim shall otherwise be rendered Unimpaired pursuant to section 1124
of the Bankruptcy Code.
On the Effective Date or as soon as practicable thereafter, the Allowed
Class 2D Claims of the U.S. Internal Revenue Service, if any, shall be paid, at
the option of the respective Reorganizing Debtor or Reorganized Debtor, (a) Cash
in an amount equal to the amount of such Allowed Class 2D Claim, or (b) Cash
over a six-year period from the date of assessment of the tax to which the claim
relates, with interest payable at a fixed rate determined as of the Confirmation
Date by the formula provided in section 6621(a)(2) of the Internal Revenue Code
and compounded daily (as provided in section 6622 of the Internal Revenue Code).
Any deferred payments made pursuant to this provision of the Plan shall be by
equal monthly Cash payment beginning on the first day of the calendar month
following the Effective Date.
Notwithstanding any other provision of this Plan, any oversecured Allowed
Class 2D Claim of the U.S. Internal Revenue Service shall be entitled to
postpetition interest at the rate provided for in section 6621(a)(2) of the
Internal Revenue Code up to the amount by which the value of the property
securing the oversecured Allowed Class 2D Claim of the U.S. Internal Revenue
Service exceeds the value of such claim.
The U.S. Internal Revenue Service shall retain the tax liens and rights to
setoff securing its Allowed Class 2D Claims and, in the event the Reorganizing
Debtors substantially default on the payment of such claims (as provided for in
this Plan), then the total amount still owed to the U.S. Internal Revenue
Service under this Plan shall become due and payable, and the U.S. Internal
Revenue Service may collect such amount through the administrative or judicial
collection provisions of the U.S. Internal Revenue Code or as otherwise
permitted under nonbankruptcy law. In this context, "substantial default" shall
mean that the Reorganizing Debtors have defaulted on a series of Plan payments
to the U.S. Internal Revenue Service and have ceased making any payments under
the Plan, and, after receiving notice of such default from the U.S. Internal
Revenue Service, have not attempted to cure the default and satisfy their Plan
obligations.
32
(c) Voting: Class 2D is Unimpaired and the Holders of Class 2D Claims
are conclusively deemed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class
2D are not entitled to vote to accept or reject the Plan.
3. Class 3D-- Reorganizing Debtor General Unsecured Claims against PHG
(a) Classification: Class 3D consists of the Reorganizing Debtor
General Unsecured Claims against PHG.
(b) Treatment: Class 3D Claims will voluntarily waive any right to
receive a distribution under the Plan.
(c) Voting: CIHC is the only creditor in Class 3D and approves of its
treatment under this subplan.
4. Class 4D-- Old PHG Common Stock Interests
(a) Classification: Class 4D consists of the Old PHG Common Stock
Interests.
(b) Treatment: PHG is a Residual Subsidiary and the Old PHG Common
Stock will be transferred to the Residual Trust.
(c) Voting: CIHC is the indirect parent of PHG. CIHC and intermediate
holding company approve of their treatment under this subplan.
Article IV.
ACCEPTANCE OR REJECTION OF THE PLAN
A. Voting Classes
Each Holder of an Allowed Claim or Allowed Equity Interest in Classes 4A,
5A-1, 5A-2, 6A, 7A, 8A, 4B-1, 4B-2, 5B, 6B and 3C shall be entitled to vote to
accept or reject the Plan.
B. Acceptance by Impaired Classes
An Impaired Class of Claims shall have accepted the Plan if (a) the Holders
(other than any Holder designated under section 1126(e) of the Bankruptcy Code)
of at least two-thirds in amount of the Allowed Claims actually voting in such
Class have voted to accept the Plan and (b) the Holders (other than any Holder
designated under section 1126(e) of the Bankruptcy Code) of more than one-half
in number of the Allowed Claims actually voting in such Class have voted to
accept the Plan. An Impaired Class of Equity Interests shall have accepted the
Plan if Holders (other than any Holder designated under Section 1126(e) of the
Bankruptcy Code) that hold at least two-thirds in amount of the Allowed Equity
Interests actually voting in such Class have voted to accept the Plan.
C. Presumed Acceptance of Plan
Classes 1A, 2A, 3A, 9A, 1B, 2B, 3B, 7B, 8B, 9B, 1C, 2C, 1D, and 2D are
Unimpaired under the Plan, and, therefore, are presumed to have accepted the
Plan pursuant to section 1126(f) of the Bankruptcy Code.
33
D. Presumed Rejection of Plan
Except as otherwise stated herein, Classes 10A, 11A, 12A, 13A, 14A, 10B,
11B, 4C and 4D are Impaired and shall receive no distributions, and, therefore,
are presumed to have rejected the Plan pursuant to section 1126(g) of the
Bankruptcy Code.
E. Non-Consensual Confirmation
The Debtors will seek Confirmation of the Plan under section 1129(b) of the
Bankruptcy Code with respect to the Impaired Classes presumed to reject the
Plan, and reserve the right to do so with respect to any other rejecting Class
and/or to modify the Plan in accordance with Article X.E hereof.
Article V.
MEANS FOR IMPLEMENTATION OF THE REORGANIZING SUBPLANS
A. Corporate Existence and Vesting of Assets in the Reorganizing Debtors and
Old CNC
1. On the Effective Date: (i) Old CNC shall continue to exist as a separate
corporate entity, with corporate powers in accordance with the laws of the State
of Indiana and its Articles of Incorporation and By-laws; provided that the
Articles of Incorporation shall be amended and restated to limit Old CNC's
activity to the implementation of the Plan, the liquidation of its Residual
Assets and the winding-up of its affairs; (ii) New CNC shall exist as a separate
corporate entity and initially as a wholly-owned subsidiary of Old CNC, with all
corporate powers in accordance with the laws of the State of Delaware, the New
CNC Charter and the New CNC By-laws; and (iii) (1) the Residual Trust shall be
settled and exist as a grantor trust and/or liquidating trust under the laws of
the State of Delaware and pursuant to the Declaration of Trust; (2) Reorganized
CIHC shall continue to exist as a separate corporate entity, with corporate
powers in accordance with the laws of the State of Delaware and its existing
charter and by-laws; (3) Reorganized CTIHC shall continue to exist as a separate
corporate entity, with corporate powers in accordance with the laws of the State
of Delaware and its existing charter and by-laws; and (4) Reorganized PHG shall
continue to exist as a separate corporate entity, with corporate powers in
accordance with the laws of the State of Illinois and its existing charter and
by-laws.
2. Except as otherwise contemplated by the Plan, on and after the Effective
Date, all property of the Estate, and any property retained or acquired by the
Debtors, Reorganizing Debtors or Reorganized Debtors under the Plan, shall vest
in the respective Debtor, Reorganizing Debtor or Reorganized Debtor free and
clear of all Claims, liens, charges, or other encumbrances. On and after the
Effective Date, each Debtor or Reorganized Debtor may operate its business and
may use, acquire or dispose of property and compromise or settle any Claims or
Equity Interests, without supervision or approval by the Bankruptcy Court and
free of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than
those restrictions expressly imposed by the Plan and the Confirmation Order.
3. On the Effective Date, all assets of Old CNC, other than the Residual
Assets, shall be transferred by Old CNC to New CNC in exchange for the New CNC
Common Stock, New CNC Preferred Stock, New CNC Warrants and the assumption of
the New Tranche A Bank Debt and the New Tranche B Bank Debt.
B. Cancellation of Old Notes, Old Preferred Stock and Old Common Stock
On the Effective Date, except to the extent otherwise expressly provided
herein, all notes, instruments, certificates, and other documents evidencing the
(i) Senior Credit Facility, (ii) Exchange Notes, (iii) Original Notes, (iv)
Subordinated Debentures, (v) 93/94 Notes, (vi) Old CNC Common Stock, and (vii)
Old CNC Preferred Stock and any and all other Claims and Equity Interests shall
be canceled and the obligations of the Reorganizing Debtors or Reorganized
Debtors thereunder or in any way related thereto shall be discharged. On the
Effective Date, except to the extent otherwise expressly provided herein, any
indenture or similar instrument relating to any of the foregoing shall be deemed
to be canceled, as permitted by section 1123(a)(5)(F) of the Bankruptcy Code,
and the
34
obligations of the respective Reorganizing Debtors or Reorganized Debtors
thereunder, shall be discharged and no such obligations will be assumed by the
Reorganized Debtors.
C. Issuance of New Securities; Execution of Related Documents
1. On or as soon as practicable after the Effective Date, the Reorganized
Debtors shall distribute or issue all securities, notes, instruments,
certificates, and other documents required to be issued pursuant to the Plan,
including, without limitation, (i) the New Credit Facility, (ii) New CNC Common
Stock, (iii) New CNC Preferred Stock, and (iv) New CNC Warrants, each of which
shall be distributed as provided herein. The Reorganized Debtors shall execute
and deliver such other agreements, documents and instruments as are required to
be executed pursuant to the terms hereof.
2. On the Effective Date, Old CNC shall issue the Residual Share to the
Residual Trust.
3. The Debtors and New CNC (and each of their respective affiliates,
agents, directors, officers, employees, advisors and attorneys), the Unofficial
Noteholders' Committee, the Unofficial Lenders' Committee, and the Official
Committees, and each of the members of such committees (and each of their
respective affiliates, agents, directors, officers, employees, advisors, and
attorneys) have, and upon confirmation of this Plan will be deemed to have,
participated in good faith and in compliance with the applicable provisions of
the Bankruptcy Code with regard to the distributions of the securities under
this Plan, and therefore are not, and on account of such distributions will not
be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of this Plan
or such distributions made pursuant to this Plan.
D. Creation of Residual Trust
On the Effective Date the Residual Trust shall be settled and exist as a
grantor trust and/or liquidating trust under the laws of the State of Delaware
and pursuant to the Declaration of Trust. The sole asset of the Residual Trust
shall be the Residual Share.
E. Liquidation of Old CNC
On or as soon as practicable after the Effective Date, Old CNC will be
liquidated and go out of existence under applicable state law. Thus, the
Residual Trust will hold the Residual Assets directly.
F. Intercompany Settlement
1. Except as otherwise explicitly provided herein, as between the Finance
Company Debtors and their affiliates, on the one hand, and the
Reorganizing Debtors and their affiliates, on the other hand, there
shall be no distributions made on account of prepetition intercompany
claims, including intercompany notes (including the CFC/CIHC
Intercompany Note and the CIHC/CFC Intercompany Note) and unpaid
interest thereon.
2. The Finance Company Debtors shall have (i) an Allowed Class 8A General
Unsecured Claim of $70 million against CNC and (ii) an Allowed Class
6B General Unsecured Claim against CIHC equal to $38 million less the
value (based on Plan Value) on the Effective Date of New CNC Common
Stock received on account of their $70 million Allowed Class 8A
General Unsecured Claim on the Effective Date. Other than such New CNC
Common Stock received on the Effective Date, the Finance Company
Debtors shall not be entitled to any other recovery on account of such
Class 8A General Unsecured Claims.
3. The Reorganizing Debtors shall be entitled to receive the Holding
Company Shared Recovery Allocation Amount.
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4. The Reorganizing Debtors and their affiliates do not waive and shall
not be deemed to have waived their rights to receive payment on
account of any B-2 Guarantee Claims they may hold.
5. The Reorganizing Debtors and their Affiliates and the Finance Company
Debtors and their Affiliates shall mutually release each other from
any and all Claims (as defined in section 101(5) of the Bankruptcy
Code), obligations, rights, suits, damages, Causes of Action, remedies
and liabilities whatsoever, including any derivative Claims asserted
on behalf of such party, whether known or unknown, foreseen or
unforeseen, existing or hereinafter arising, in law, equity or
otherwise, that the party or its subsidiaries would have been legally
entitled to assert in their own right (whether individually or
collectively) or on behalf of the Holder of any Claim or Equity
Interest or other Person or Entity, based in whole or in part upon any
act or omission, transaction, agreement, event or other occurrence
taking place on or before the Effective Date, other than Claims or
liabilities arising out of or relating to any Releasee's obligations
to repay its obligations under the D&O Credit Facilities.
G. Implementation of Senior Management KERP
To the extent the Debtors have not already implemented all or part of the
Senior Management KERP prior to the Effective Date, on the Effective Date the
Debtors are directed to implement the Senior Management KERP with regard to
Edward M. Berube, Eugene M. Bullis, Charles H. Cremens, Eric R. Johnson, and
William J. Shea, and the Debtors and/or Reorganized Debtors shall perform any
and all obligations thereunder, including the payment of performance bonuses,
emergence bonuses and severance amounts contemplated thereby.
H. Assumption of the Senior Management Employment Agreements
To the extent the Debtors have not already assumed the Senior Management
Employment Agreements prior to the Effective Date (to the extent such agreements
apply to the Debtors), on the Effective Date the Reorganized Debtors shall be
deemed to have assumed the Senior Management Employment Agreements, and to the
extent such agreements apply to affiliated non-debtors, they shall be affirmed
and restated in all respects by the Reorganized Debtors and the applicable
affiliated non-debtors on the Effective Date.
I. TOPrS Settlement
Set forth below are the material terms and conditions of the proposed
settlement with the Holders of Trust Preferred Securities (the "TOPrS
Settlement"). A Holder of a Trust Preferred Security may opt out of the TOPrS
Settlement pursuant and subject to the TOPrS Opt-Out Notice.
1. The TOPrS Settlement Recovery. On the Effective Date, the Holders of
Trust Preferred Securities who have not opted out of the TOPrS Settlement will
receive their Pro Rata share of the TOPrS Settlement Recovery from the Debtors
and the Holders of Claims in Classes 5A, 6A, 7A, 4B and 5B. The TOPrS Settlement
Recovery consists of the following:
(a) The TOPrS Settlement Equity Recovery. The TOPrS Settlement Equity
Recovery is 1.5% of the New CNC Common Stock to be issued and outstanding
pursuant to the Plan on or as soon as practicable after the Effective Date.
(b) The New CNC Warrants. Pursuant to and subject to the New CNC
Warrant Agreement, the New CNC Warrants will (i) be exercisable for the
purchase of 6% of the New CNC Common Stock, (ii) have a term of 5 years
from the Effective Date, and (iii) have an exercise price based on a $4.9
billion enterprise valuation of New CNC, all in accordance with the terms
of the New CNC Warrant Agreement.
(c) The TOPrS Settlement D&O Litigation Recovery. Under the TOPrS
Settlement D&O Litigation Recovery, the Holders of Allowed Trust Preferred
Securities who have not opted out of the TOPrS Settlement will be entitled
from and after the Effective Date to receive 45% of Net D&O Litigation
36
Proceeds in an aggregate amount not to exceed $30 million, payable in (i)
Cash or (ii) in the sole discretion of New CNC, New CNC Common Stock
(valued at the Market Value of such New CNC Common Stock at the time a
distribution is due to be made to Holders of Trust Preferred Securities).
As such Net D&O Litigation Proceeds are received by New CNC, New CNC shall
promptly deposit the TOPrS Settlement D&O Recovery in a separate
interest-bearing account, and the interest accrued thereon shall be
included in the proceeds distributed to the Holders of Trust Preferred
Securities as of the Distribution Record Date who have not opted out of the
TOPrS Settlement. New CNC will make distributions of the TOPrS Settlement
D&O Recovery (in cash or New CNC Common Stock) to Holders of Trust
Preferred Securities who have not opted out of the TOPrS Settlement on the
first anniversary of the Effective Date and annually thereafter; provided
that a distribution shall not be made if there is less than $10 million in
value to distribute, in which case such amount shall be distributed on the
next distribution date, unless there has been no distribution for 24
months, in which event the available funds shall be distributed subject to
the right of the TOPrS Settlement Representative to further defer such
distribution until the next anniversary of the Effective Date. All
distributions shall be made only to the Holders of Trust Preferred
Securities as of the Distribution Record Date who have not opted out of the
TOPrS Settlement. All costs arising out of the distributions contemplated
in this paragraph shall be paid from the TOPrS Settlement D&O Recovery to
be distributed in any given distribution. The right to receive the TOPrS
Settlement D&O Litigation Recovery is not transferable to any party. New
CNC will provide the TOPrS Settlement Representative with a semi-annual
status report of New CNC's efforts to recover the Net D&O Litigation
Proceeds. To the extent provided in the D&O Transfer Agreement, the
Reorganized Debtors shall have the sole discretion to pursue, settle,
compromise or otherwise resolve all claims based on or derived from the D&O
Credit Facilities against those current or former directors and officers of
the Reorganizing Debtors or Reorganized Debtors who are not eligible to
participate in the programs described in Article V.K.5 of the Plan; and the
Reorganized Debtors and their officers, directors, employees agents and
professionals shall have no liability to any Holder of a Trust Preferred
Security (or the TOPrS Settlement Representative) on account of or related
to any decisions, actions or omissions related to such collections of such
Claims (if any) other than a breach of the Reorganized Debtors' obligations
to make distributions or deposits of the TOPrS D&O Litigation Recovery or
to make reports pursuant to this paragraph.
2. TOPrS Release Provision. Holders of Trust Preferred Securities that have
not validly submitted a TOPrS Opt Out Notice shall be deemed to have released,
expunged and discharged any and all Claims, obligations, rights, suits, damages,
causes of action, and remedies whatsoever, whether known or unknown, existing or
hereafter arising in law, equity or otherwise, based in whole or in part on any
act or omission, transaction, agreement, event or other occurrence taking place
on or before the Effective Date that could be asserted by a Holder of a Trust
Preferred Security against any third party (including, the Releasees (including
Gary Wendt) and the holders of Claims in Classes 5A, 6A, 7A, 4B and 5B) relating
in any way to Conseco or its subsidiaries, provided, however, that such release
shall not include claims based upon insurance policies, annuities, or other
similar contracts between a Holder of a Trust Preferred Security and any of the
Reorganized Debtors or their subsidiaries. The TOPrS Committee will withdraw
with prejudice all objections and appeals relating in any way to the Plan or the
Debtors' chapter 11 cases. Without limiting the generality of the foregoing, on
the Effective Date, to the extent they have not already been dismissed with
prejudice, the TOPrS Appeals will be deemed dismissed with prejudice promptly
upon the occurrence of the Effective Date.
3. Level of TOPrS Opt Out Participation. The Reorganizing Debtors and the
Conseco Creditors' Committee shall each have the right to withdraw from the
TOPrS Settlement if either of the following conditions (a "Cancellation
Condition") is met: (i) more than 750 Holders of Trust Preferred Securities opt
out of the TOPrS Settlement or, (ii) Holders of Trust Preferred Securities
holding more than $45 million in value in the aggregate opt out of the TOPrS
Settlement. However, if the Holders opting out of the TOPrS Settlement do not
either (i) exceed 2500 in number or (ii) hold in excess of $100 million in value
in the aggregate, such withdrawal by the Reorganizing Debtors or the Conseco
Creditors' Committee, as the case may be, would have to be approved by the
Bankruptcy Court, based upon a business judgment standard.
In the case that either the Reorganizing Debtors or the Conseco Creditors'
Committee withdraws from the TOPrS Settlement or if the Court does not approve
the TOPrS Settlement, the Plan will be modified to provide for distributions to
Classes 5A, 6A, 7A, 10A, 4B, and 5B to be as set forth in the Fourth Amended
Plan, notwithstanding any other provision of this Article V.I. herein. In
addition, in such event, notwithstanding any other
37
provision of Article V.I. herein, the TOPrS Settlement or the Plan, in the event
of a Cancellation Condition that is not waived by the Reorganizing Debtors and
the Conseco Creditors' Committee prior to the Confirmation Date, or if the Court
does not approve the TOPrS Settlement set forth herein, the TOPrS Settlement
will be null and void as if the parties had never entered into it, and each
party shall be restored to their claims, rights, objections and defenses without
prejudice; and in particular and without limitation, the TOPrS' Appeals shall
not be dismissed, and the TOPrS Committee's objections to confirmation of the
Fourth Amended Plan (and its predecessor Plans or any subsequent Plans) shall
remain in full effect.
J. Creation of Professional Escrow Account
On the Effective Date, the Reorganized Debtors shall establish the
Professional Escrow Account and reserve the amounts necessary to ensure the
payment of all Accrued Professional Compensation.
K. Corporate Governance, Directors and Officers, and Corporate Action
1. Amended Certificate of Incorporation and By-laws
On or before the Effective Date, New CNC will file the New CNC Charter with
the Secretary of State of Delaware in accordance with Section 103 of the
Delaware General Corporation Law. The New CNC Charter and the New CNC By-laws
will, among other things, authorize approximately 8,000,000,000 shares of New
CNC Common Stock and approximately 265,000,000 shares of New CNC Preferred
Stock. In addition, the New CNC Charter shall prohibit the issuance of
non-voting equity securities to the extent required by the provisions of Section
1123(a)(6) of the Bankruptcy Code. After the Effective Date, New CNC may amend
and restate the New CNC Charter and other constituent documents as permitted by
Delaware law.
2. Directors and Officers of the Reorganized Debtors
The Boards of Directors of each of New CNC, Reorganized CIHC and the other
Debtors as reorganized immediately following the Effective Date shall consist of
the individuals specified in the Plan Supplement.
3. Management Incentive Plan
On the Effective Date, New CNC will implement the Management Incentive Plan
substantially in the form set forth in the Plan Supplement.
4. Employment Agreements
On the Effective Date, New CNC shall enter into the Senior Management
Employment Agreements.
5. Resolution of the Directors & Officers Stock Purchase Program for
Certain Participants
Within fifteen (15) days after the Effective Date, New CNC and Reorganized
CIHC shall take the following actions with respect to the individuals and
entities (each a "Participant" and collectively, the "Participants") that, as of
the Effective Date (i) owe amounts under the D&O Credit Facilities or to New CNC
and Reorganized CIHC pursuant to the various directors, officers and key
employees stock purchase programs (the "Stock Programs") and (ii) purchased
40,000 or less shares of Conseco, Inc. common stock pursuant to the Stock
Programs and owe amounts under the D&O Credit Facilities or to New CNC and
Reorganized CIHC as part of the Stock Programs:
(a) New CNC and Reorganized CIHC, in settlement of any good faith
claims(2) such Participant may have in any manner relating to the D&O
Credit Facilities, the Stock Programs, or any
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2 Pursuant to an order entered on February 19, 2003, the claims bar date for
Participants is 60 days after the Effective Date. As of the date this
amended Plan was filed with the Bankruptcy Court, it appears that very few
Participants have filed a proof of claim against any Reorganizing Debtor.
Any Participant who executes an Adjustment Agreement will release his or
her claims against the Reorganizing Debtors related to the D&O Credit
Facilities, Stock Programs and any Work-Down Plan.
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Work-Down Plan, shall offer a Purchase Price Adjustment Agreement
substantially in the form attached as Exhibit H to the Disclosure Statement
(the "Adjustment Agreement") to such Participant pursuant to which (i) the
Participant's initial loan amounts shall be reduced to an amount equal to
an agreeable price(3) per share for the shares purchased by such
Participant (the "Adjusted Purchase Amount"), and (ii) New CNC and
Reorganized CIHC shall cause their affiliate Conseco Services, LLC ("LLC")
to execute the Adjustment Agreement and to reduce any loans such
Participant owes to LLC related to the D&O Credit Facilities and/or the
Stock Programs to an amount calculated on an agreeable price per share for
the shares purchased by such Participant (the "Adjusted Interest Amount");
provided, however, that under the Adjustment Agreement:
(i) Participant shall (A) pay to New CNC the Adjusted Purchase
Amount and (B) pay to LLC the Adjusted Interest Amount within 90 days
after the Participant signs the Adjustment Agreement, but if payment
is not made on such date, Participant shall owe (A) New CNC 4% per
annum simple interest on the Adjusted Purchase Amount, accruing as of
the 91st day, and (B) LLC 4% per annum simple interest on the Adjusted
Interest Amount, accruing as of the 91st day.
(ii) Participant releases New CNC, Reorganized CIHC, the original
lenders under the D&O Credit Facilities (and their successors and
assigns), their respective affiliates, and the respective officers,
directors, employees, agents (including financial consultants) and
attorneys of the original lenders under the D&O Credit Facilities (and
of their successors and assigns) (collectively, the "SP Releasees")
from any and all claims the Participant may have with respect to the
D&O Credit Facilities, his or her participation in the Stock Programs
or any Work-Down Plan, and/or this Plan, but Participant reserves all
rights against the Ineligible Persons (defined in paragraph c. below)
and all others (other than the SP Releasees) who were involved in the
D&O Credit Facilities and/or the Stock Programs (such others (other
than the SP Releasees) together with the Ineligible Persons, the
"Non-Released Entities") and waives no causes of action, setoffs,
claims, rights, defenses, powers, and/or remedies (or similar
matters), whether under the pertinent loan documents, applicable law
or otherwise, against the Non-Released Entities and/or the
Non-Released Entities' past, present or future property (including any
such property that may be in the hands of any immediate or mediate
transferee), all regardless of whether New CNC or Reorganized CIHC
asserts or exercises (or does not assert or exercise, as the case may
be) similar causes of action, setoffs, claims, rights, defenses and/or
remedies (or similar matters) (in any combination) against any other
person or entity.
(iii) Upon Participant's payment of (A) the Adjusted Purchase
Amount to New CNC and (B) the Adjusted Interest Amount to LLC, New
CNC, Reorganized CIHC, and LLC and their respective affiliates shall
release the Participant from any claims with respect to the D&O Credit
Facilities, Stock Programs or any Work-Down Plan, but New CNC,
Reorganized CIHC and LLC (A) waive no other causes of action, setoffs,
claims, rights, defenses, powers, and/or remedies (or similar matters)
against Participant and (B) New CNC, Reorganized CIHC and LLC reserve
all rights against Non-Released Entities (as defined in paragraph a.2.
above) and waive no causes of action, setoffs, claims, rights,
defenses, powers, and/or remedies (or similar matters), whether under
the pertinent loan documents, applicable law or otherwise, against the
Non-Released Entities and/or the Non-Released Entities' past, present
or future property (including any such property that may be in the
hands of any immediate or mediate transferee), all regardless of
whether New CNC or Reorganized CIHC asserts or exercises (or does not
assert or exercise, as the case may be) similar causes of action,
setoffs, claims, rights, defenses and/or remedies (or similar matters)
(in any combination) against any other person or entity.
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3 New CNC and Reorganized CIHC shall negotiate with each Participant an
agreeable price per share unique to such Participant. New CNC and
Reorganized CIHC shall not be obliged to offer the same price to all
Participants.
39
(iv) Participant assigns to New CNC his or her rights against the
Non-Released Entities (as defined in paragraph (a)(ii) above).
The Adjustment Agreement annexed as Exhibit H to the Disclosure Statement
shall be executed on an individualized basis by the Reorganized Debtors and
Participants that are offered it and choose to sign it and, in addition to the
other restrictions set forth herein, no Participant shall be entitled to the
benefits of the Adjustment Agreement absent such execution and delivery of the
Adjustment Agreement. Participants who are offered the Adjustment Agreement may
choose to decline to sign it, but in such event, any such declining Participants
shall become Ineligible Persons (defined in paragraph c. below).
The Debtors have determined based on several different business and legal
considerations to offer an Adjustment Agreement to such Participants subject to
the foregoing conditions, and their decision to do so shall in no manner be
deemed to be an admission by either of them (or by any other Person) as to the
accuracy of any factual statement or legal theory underlying any such good faith
claims on the part of any such Participant or any other borrower under the D&O
Credit Facilities, but on the contrary, the Debtors deny the legal validity or
enforceability of any such claims or defenses and expressly reserves any and all
of their claims, defenses, rights, powers and/or remedies against any such
Participant in the event that this Plan is not confirmed and against Ineligible
Persons, whether or not this Plan is confirmed. The decision to offer an
Adjustment Agreement to a Participant under the terms and conditions of this
Article V.K.5.a has been made in connection with and is a part of this Plan and,
as such, is independent of and is expressly not a renewal or extension of any
Work-Down Plan, and shall not be deemed to be a renewal or extension of any
Work-Down Plan under any circumstances.
(b) Pursuant to Article III.C.4.(c) of this Plan, New CNC shall
succeed to the lenders' right, title and interest in the loans underlying
the D&O Credit Facilities.
(c) The following are ineligible to enter into an Adjustment Agreement
(collectively, "Ineligible Persons"): (i) persons or entities that
purchased more than 40,000 shares of Conseco, Inc. common stock and owe
amounts under the D&O Credit Facilities or to New CNC or Reorganized CIHC
as part of the Stock Programs, (ii) Participants who are offered an
Adjustment Agreement under paragraph a. above but who, for whatever reason,
refuse to sign an Adjustment Agreement, (iii) Participants who are not
offered an Adjustment Agreement under paragraph d. below, and (iv) any
director or executive officer (or the equivalent thereof) for purposes of
the Sarbanes-Oxley Act.
(d) Notwithstanding Article F.5.a above, New CNC and Reorganized CIHC
may choose not to offer an Adjustment Agreement to any Participant who
purchased 40,000 or less shares who New CNC and Reorganized CIHC reasonably
believe directed and/or authorized (1) the implementation of the Stock
Program, (2) the number of shares (or aggregate purchase price) of Conseco,
Inc. common stock to be purchased in the aggregate pursuant to the Stock
Program and/or (3) the selection of individuals eligible to participate in
the Stock Program and/or their permitted level of participation. The fact
that a Participant is or is not a current employee of New CNC, Reorganized
CIHC or any affiliate shall not be a factor in determining whether New CNC
and Reorganized CIHC offer a Participant an Adjustment Agreement.
6. Listing/Registration Rights
On the Effective Date New CNC shall (a) be a reporting company under the
Exchange Act, and (b) execute and deliver the Registration Rights Agreements
substantially in the form set forth in the Plan Supplement. After the
Confirmation Date, New CNC shall take all reasonable steps to cause the shares
of New CNC Preferred Stock, New CNC Common Stock and New CNC Warrants to be
listed, as soon as practicable after the Effective Date, on the New York Stock
Exchange or such other securities exchange as agreed with the Conseco Creditors
Committee, if the listing requirements for such securities exchange are
satisfied with respect to such securities.
40
7. Corporate Action
On the Effective Date (or on the Confirmation Date with respect to actions
taken prior to the Effective Date), the adoption and filing of the New CNC
Charter and New CNC By-laws, the appointment of directors and officers for the
Reorganized Debtors, the adoption of the Management Incentive Plan, and all
actions contemplated hereby shall be authorized and approved in all respects
(subject to the provisions hereof) pursuant to this Plan. All matters provided
for herein involving the corporate structure of the Debtor, Reorganizing
Debtors, or Reorganized Debtors and any corporate action required by the
Debtors, Reorganizing Debtors or Reorganized Debtors in connection with the
Plan, shall be deemed to have occurred and shall be in effect, without any
requirement of further action by the security holders or directors of the
Debtors, Reorganizing Debtors or Reorganized Debtors. On or before the Effective
Date, the appropriate officers of the Reorganized Debtors and members of the
board of directors of the Reorganized Debtors are authorized and directed to
issue, execute and deliver the agreements, documents, securities and instruments
contemplated by the Plan in the name of and on behalf of the Reorganized Debtors
without the need for any required approvals, authorizations or consents except
for express consents required under this Plan.
L. Sources of Cash for Plan Distribution
All Cash necessary for the Reorganizing Debtors and Reorganized Debtors to
make payments pursuant hereto shall be obtained from existing Cash balances of
the Debtors.
M. Retiree Benefits
The Reorganizing Debtors and/or Reorganized Debtors shall timely pay any
retiree benefits as defined in Section 1114(a) of the Bankruptcy Code to the
extent that such retiree benefits are payable by the Reorganizing Debtors and/or
Reorganized Debtors. Such retiree benefits include those that arise from the
plans, funds or programs described in the Plan Supplement.
N. GM Building Sale
The sale or transfer of the GM Building (or entities owning the GM Building
or interests therein) pursuant to or consistent with an Order of the Bankruptcy
Court shall be deemed a transfer under, pursuant to and in furtherance of this
Plan.
Article VI.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Executory Contracts and Unexpired Leases
Immediately prior to the Effective Date, except as otherwise provided
herein, all executory contracts including, without limitation, the prepetition
engagement letters for the financial and legal advisors to the Unofficial Bank
Committee and the Unofficial Noteholder Committee, respectively, stipulation
agreements entered into with Distribution Agents during the course of these
Chapter 11 Cases, or unexpired leases of the Reorganizing Debtors will be deemed
assumed in accordance with the provisions and requirements of sections 365 and
1123 of the Bankruptcy Code except those executory contracts and unexpired
leases that (1) have been rejected by order of the Bankruptcy Court, (2) have
previously been assumed by order of the Bankruptcy Court, (3) are the subject of
a motion to reject pending on the Effective Date, (4) are identified in the Plan
Supplement to be rejected, or (5) relate to the purchase or other acquisition of
Equity Interests. Entry of the Confirmation Order by the Bankruptcy Court shall
constitute approval of such assumptions and rejections pursuant to sections
365(a) and 1123 of the Bankruptcy Code.
41
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases
All Proofs of Claims with respect to Claims arising from the rejection of
executory contracts or unexpired leases, if any, must be Filed with the
Bankruptcy Court within thirty (30) days after the date of entry of an order of
the Bankruptcy Court approving such rejection. Any Claims arising from the
rejection of an executory contract or unexpired lease not Filed within such time
will be forever barred from assertion against any Debtor or Reorganized Debtor,
any Estate, or property of any Debtor or Reorganized Debtor, unless otherwise
ordered by the Bankruptcy Court. All Allowed Claims arising from the rejection
of executory contracts or unexpired leases of the Reorganizing Debtor will be
classified as Reorganizing Debtor General Unsecured Claims.
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed
Any monetary amounts by which each executory contract and unexpired lease
to be assumed pursuant to the Plan is in default shall be satisfied, pursuant to
section 365(b)(1) of the Bankruptcy Code, by payment of the default amount in
Cash on the Effective Date, or as soon thereafter as is practicable, or on such
other terms as the parties to such executory contracts or unexpired leases may
otherwise agree. In the event of a dispute regarding: (1) the amount of any cure
payments, (2) the ability of the relevant 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, the cure payments required by
section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a
Final Order resolving the dispute and approving the assumption. Ten days before
the Confirmation Hearing, the Debtors will contact relevant contract
counterparties with the Stated Cure Amounts (if any) for all executory contracts
and unexpired leases to be assumed pursuant to the Plan.
D. Indemnification of Directors, Officers and Employees
The prepetition obligations of any Debtor to indemnify any Releasee serving
at any time on or after the Petition Date as one of its directors, officers or
employees by reason of such Releasee's service in such capacity, or as a
director, officer or employee of any other corporation or legal entity, to the
extent provided in such Debtor's constitutive documents, by a written agreement
with such Debtor or under applicable state corporate law (to the maximum extent
permitted thereunder), shall be deemed and treated as executory contracts that
are assumed by the relevant Reorganized Debtor (it being understood that New CNC
is the relevant Reorganized Debtor of CNC) pursuant hereto and section 365 of
the Bankruptcy Code as of the Effective Date. Accordingly, such indemnification
obligations shall survive Unimpaired and unaffected by entry of the Confirmation
Order, irrespective of whether such indemnification is owed for an act or event
occurring before or after the Petition Date. Notwithstanding any of the
foregoing or the terms of any bylaws, agreements or documents to the contrary,
the aggregate direct payments made by the Reorganized Debtors for prepetition
indemnity under this section for all Releasees who no longer serve after the
Effective Date as a director, officer or employee of a Reorganized Debtor and
for insurance premiums under Article VI.F. shall not exceed $3,000,000 in the
aggregate. Nothing in this Plan shall limit or cap the prepetition
indemnification obligations arising under the by-laws in effect on the Petition
Date(4) that are owed to Releasees who continue to serve as directors, officers
or employees of a Reorganized Debtor after the Effective Date, which shall be
assumed as set forth above. Furthermore, the prepetition obligations of any
Debtor to indemnify any officer, director or employee who is not a Releasee
shall be deemed terminated as of the Effective Date by the relevant Reorganizing
Debtor. As set forth above, nothing in this Plan shall affect the rights of any
Releasee or the obligations of the Reorganizing Debtors or the Reorganized
Debtors with respect to postpetition obligations to indemnify any Releasee with
respect to postpetition actions.
E. Compensation and Benefit Programs
Except as otherwise expressly provided herein, all employment and severance
agreements and policies, and all compensation and benefit plans, policies, and
programs of the Debtors applicable to their respective employees, former
employees, retirees and non-employee directors and the employees, former
employees and retirees of its
- ------------------------
4 The by-laws in effect as of the Petition Date are dated October 3, 2002.
42
subsidiaries, including, without limitation, all savings plans, retirement
plans, health care plans, disability plans, severance benefit agreements and
plans, incentive plans, deferred compensation plans and life, accidental death
and dismemberment insurance plans shall be treated as executory contracts under
the Plan and on the Effective Date shall be deemed assumed pursuant to the
provisions of sections 365 and 1123 of the Bankruptcy Code; and the Debtors'
obligations under such programs to Persons shall survive confirmation of this
Plan, except for (i) executory contracts or employee benefit plans specifically
rejected pursuant to this Plan (to the extent such rejection does not violate
sections 1114 and 1129(a)(13) of the Bankruptcy Code), (ii) all employee equity
or equity-based incentive plans, and (iii) such executory contracts or employee
benefit plans as have previously been rejected, are the subject of a motion to
reject as of the Confirmation Date, or have been specifically waived by the
beneficiaries of any employee benefit plan or contract; provided however, that
the Debtors' obligations, if any, to pay all "retiree benefits" as defined in
section 1114(a) of the Bankruptcy Code shall continue.
F. Assumption of D&O Insurance
All directors' and officers' liability insurance policies maintained by the
Debtors are hereby assumed. Entry of the order confirming the Plan by the clerk
of the Bankruptcy Court shall constitute approval of such assumptions pursuant
to section 365(a) of the Bankruptcy Code. The Reorganized Debtors shall maintain
for a period not less than 6 years from the Effective Date coverage for the
individuals covered, as of the Petition Date, under policies on terms not
substantially less favorable to such individuals than the terms provided for
under the policies assumed pursuant to the Plan. Solely with respect to
directors and officers of any of the Debtors who served in such capacity at any
time on or after the Petition Date, the Debtors shall be deemed to assume, as of
the Effective Date, their respective obligations to indemnify such individuals
(and only such individuals) with respect to or based upon any act or omission
taken or omitted in any of such capacities, or for or on behalf of any Debtor,
pursuant to and to the extent provided by the Debtors' respective articles of
incorporation, certificates of formation, corporate charters, bylaws, and
similar corporate documents as in effect as of the date of entry of the
Confirmation Order. Notwithstanding anything to the contrary contained herein,
such assumed indemnity obligations shall not be discharged, Impaired, or
otherwise modified by confirmation of this Plan and shall be deemed and treated
as executory contracts that have been assumed by the Debtors pursuant to this
Plan as to which no proofs of claim need be Filed. Notwithstanding any of the
foregoing or the terms of any bylaws, agreements or documents to the contrary,
aggregate direct payments made by the Reorganized Debtors for insurance premiums
under this section and for prepetition indemnity payments for Releasees who no
longer serve on the Effective Date as a director, officer or employee of a
Reorganized Debtor under Article VI.D shall not exceed $3,000,000 in the
aggregate, provided that no more than an additional $2,000,000 of indirect costs
of the Reorganizing Debtors shall be used to pay for such insurance; and further
provided that no provision of this Plan shall limit any Releasee's rights to
seek recovery or reimbursement under any directors' and officers' liability
insurance policy.
Article VII.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims and Equity Interests Allowed as of the Effective
Date
Except as otherwise provided herein or as may be ordered by the Bankruptcy
Court, distributions to be made on the Effective Date on account of Claims and
Equity Interests that are Allowed as of the Effective Date and are entitled to
receive distributions under the Plan shall be made on the Effective Date or as
soon as practicable thereafter. If allowance or disallowance of a Claim affects
the New CNC Common Stock Holdback, distributions of New CNC Common Stock that
are consequently no longer reserved will occur annually on each anniversary of
the Effective Date, or more frequently, as determined by New CNC in its sole and
absolute discretion.
For purposes of determining the accrual of interest, dividends or rights in
respect of any other payment from and after the Effective Date, the New Tranche
A Bank Debt, the New Tranche B Bank Debt, New CNC Preferred Stock, New CNC
Warrants and New CNC Common Stock shall be deemed issued as of the Effective
Date regardless of the date on which they are actually dated, authenticated or
distributed; provided that, the respective Reorganized Debtor shall withhold any
actual payment until such distribution is made.
43
B. Distributions by the Distribution Agent(s)
The Debtors shall have the authority, in their sole discretion, to enter
into agreements with one or more Distribution Agents, to facilitate the
solicitation of votes on the Reorganizing Subplans and distributions required
under the Reorganizing Subplans. As a condition to serving as a Distribution
Agent, a Distribution Agent must (i) affirm its obligation to facilitate the
prompt distribution of any documents or solicitation materials, (ii) affirm its
obligation to facilitate the prompt distribution of any recoveries or
distributions required under the Reorganizing Subplan at issue, and (iii) waive
any right or ability to setoff against, deduct from, or assert any lien or
encumbrance against the distributions required under the Reorganizing Subplan
that are to be distributed by such Distribution Agent. In consideration for
waiving its rights to setoff, deduct from or assert any lien or encumbrance
against such distributions, the Debtors shall pay all reasonable fees and
expenses (whether prepetition or postpetition) of such Distribution Agent. The
Distribution Agent shall submit detailed invoices to the Debtors for all fees
and expenses for which the Distribution Agent seeks reimbursement. The Debtors,
upon review of such invoices, shall pay those amounts the Debtors, in their sole
discretion, deem reasonable, and shall object in writing to those fees and
expenses, if any, that the Debtors deem to be unreasonable. In the event that
the Debtors object to all or any portion of a Distribution Agent's invoice, the
Debtors and such Distribution Agent will endeavor, in good faith, to reach
mutual agreement on the amount of such disputed fees and/or expenses. In the
event that the Debtors and a Distribution Agent are unable to resolve any
differences regarding disputed fees or expenses, either party shall be
authorized to move to have such dispute heard by the Bankruptcy Court. To the
extent the Debtors and any Distribution Agent entered into a stipulation during
these Chapter 11 Cases concerning the fees of such Distribution Agent, such
stipulations are assumed hereunder and the payment obligations evidenced thereby
shall become obligations of the Reorganized Debtors to the extent such
obligations remain unpaid as of the Effective Date.
C. Delivery and Distributions and Undeliverable or Unclaimed Distributions
1. Delivery of Distributions in General
Distributions to Holders of Allowed Claims and Allowed Equity Interests
shall be made to the Holders of such Allowed Claims and Allowed Equity Interests
as of the Distribution Record Date. Except as otherwise provided herein,
distributions to Holders of Allowed Claims and Allowed Equity Interests shall be
made at the address of the Holder of such Claim or Equity Interest as indicated
on the records of the Debtors as of the date that such distribution is made.
2. Undeliverable Distributions
(a) Holding of Undeliverable Distributions
If any distribution to a Holder of an Allowed Claim or Allowed Equity
Interest is returned to a Distribution Agent as undeliverable, no further
distributions shall be made to such Holder unless and until such Distribution
Agent is notified in writing of such Holder's then-current address.
Undeliverable distributions shall remain in the possession of such Distribution
Agent subject to Subsection (b) below until such time as a distribution becomes
deliverable. Undeliverable Cash shall not be entitled to any interest, dividends
or other accruals of any kind. As soon as reasonably practicable, a Distribution
Agent shall make all distributions that become deliverable.
(b) Failure to Claim Undeliverable Distributions
In an effort to ensure that all Holders of Allowed Claims and Equity
Interests receive their allocated distributions, ninety (90) days after the
Effective Date, the Reorganized Debtors will file with the Bankruptcy Court a
listing of unclaimed distributions. This list will be maintained for as long as
the Chapter 11 Cases stay open. Any Holder of an Allowed Claim or Equity
Interest (irrespective of when a Claim or Equity Interest became an Allowed
Claim or Equity Interest) that does not assert a Claim or Equity Interest
pursuant hereto for an undeliverable distribution (regardless of when not
deliverable) within two years after the Effective Date shall have its Claim or
Equity Interest for such undeliverable distribution discharged and shall be
forever barred from asserting any such Claim or Equity Interest against the
relevant Reorganized Debtor or its property. In such cases: (i) any Cash held
44
for distribution on account of such Claims or Equity Interests shall be property
of the relevant Reorganized Debtor free of any restrictions thereon; and (ii)
any securities issued hereunder held for distribution on account of such Claims
or Equity Interests shall be canceled and of no further force or effect. Nothing
contained herein shall require any Reorganized Debtor or any Distribution Agent
to attempt to locate any Holder of an Allowed Claim or Allowed Equity Interest.
3. Compliance with Tax Requirements/Allocations
In connection with the Plan, to the extent applicable, each Reorganizing
Debtor, Reorganized Debtor and Distribution Agent shall comply with all tax
withholding and reporting requirements imposed on it by any governmental unit,
and all distributions pursuant hereto shall be subject to such withholding and
reporting requirements. Each Reorganizing Debtor, Reorganized Debtor and
Distribution Agent shall be authorized to take all actions necessary or
appropriate to comply with such withholding and reporting requirements. For tax
purposes, distributions received in respect of Allowed Claims will be allocated
first to the principal amount of Allowed Claims, with any excess allocated to
unpaid interest that accrued on such Claims. If any Reorganizing Debtor,
Reorganized Debtor or Distribution Agent determines that withholding is required
with respect to any distribution, a Creditor will have the option of (a) paying
to the Reorganized Debtor or the Distribution Agent an amount of such tax
liability with respect to such distribution, and the recipient of such funds
shall remit such funds to the appropriate taxing authority, or (b) making
arrangements satisfactory to the Reorganized Debtor and the Distribution Agent
for the Creditor to liquidate a portion of the Plan distribution and to remit
such proceeds as necessary to cover required withholding taxes, with any
remaining Plan distribution being distributed to the Creditor.
D. Timing and Calculation of Amounts to be Distributed
On the Effective Date or as soon as practicable thereafter, each Holder of
an Allowed Claim against or Allowed Equity Interest in the Debtors shall receive
the full amount of the distributions that the Plan provides for Allowed Claims
or Allowed Equity Interests in the applicable Class. If and to the extent that
there are Disputed Claims or Disputed Equity Interests, distributions on account
of such Disputed Claims or Equity Interests shall be made pursuant to the
provisions set forth in Article VIII.A.3.
E. Minimum Distribution
Any other provision of the Plan notwithstanding, payments of fractions of
shares of New CNC Common Stock or New CNC Preferred Stock or fractions of New
CNC Warrants will not be made and will be deemed to be zero. Any other provision
of the Plan notwithstanding, the Reorganized Debtors or a Distribution Agent
will not be required to make distributions or payments of fractions of dollars.
Whenever any payment of a fraction of a dollar under the Plan would otherwise be
called for, the actual payment will reflect a rounding of such fraction to the
nearest whole dollar (up or down), with half dollars or less being rounded down.
F. Setoff
Except as expressly provided for herein, each Reorganizing Debtor and
Reorganized Debtor may, as the case may be, pursuant to the Bankruptcy Code
(including, without limitation, section 553) or applicable non-bankruptcy law or
as may be agreed to by the Holder of a Claim, set off against any Allowed Claim
or Equity Interest and the distributions to be made pursuant hereto on account
of such Allowed Claim or Equity Interest (before any distribution is made on
account of such Allowed Claim or Equity Interest), any Claims, Equity Interests,
rights and Causes of Action of any nature that such Reorganizing Debtor or
Reorganized Debtor, as the case may be, may hold against the Holder of such
Allowed Claim or Equity Interest to the extent the Claims, Equity Interests,
rights or Causes of Action against such Holder have not been compromised or
settled on or prior to the Effective Date (whether pursuant to the Plan or
otherwise); provided that, neither the failure to effect such a setoff nor the
allowance of any Claim or Equity Interest hereunder shall constitute a waiver or
release by such Reorganizing Debtor or Reorganized Debtor of any such Claims,
Equity Interests, rights and Causes of Action that such Reorganizing Debtor or
Reorganized Debtor may possess against such Holder.
45
G. Surrender of Canceled Instruments or Securities
Subject to Subsection I below, each record Holder of an Allowed Claim or
Equity Interest relating to the (i) Exchange Notes, (ii) Original Notes, (iii)
Subordinated Debentures, (iv) CNC Common Stock, or (v) CNC Preferred Stock shall
surrender the certificates or other documentation underlying such Claim or
Equity Interest, and all such surrendered certificates and other documentations
shall be marked as canceled. Any certificate or other documentation underlying
Claims related to (i) Senior Credit Facility, (ii) CIHC Guarantee of Senior
Credit Facility, (iii) CNC Guarantee of D&O Credit Facilities, (iv) CIHC
Guarantee of D&O Credit Facilities shall be deemed to be surrendered and
cancelled.
H. Failure to Surrender Canceled Instruments
Any Holder of Allowed Claims or Equity Interests relating to the (i)
Exchange Notes, (ii) Original Notes, (iii) Subordinated Debentures, (iv) CNC
Common Stock, or (v) CNC Preferred Stock that fails to surrender or is deemed to
have failed to surrender its certificates or other documentation representing
such Claim or Equity Interest required to be tendered hereunder within one year
after the Effective Date shall have its Claim for a distribution pursuant hereto
on account of such Allowed Claim or Allowed Equity Interests discharged and
shall be forever barred from asserting any such Claim or Equity Interest against
any Reorganizing Debtor, Reorganized Debtor, Distribution Agent or their assets.
I. Lost, Stolen, Mutilated or Destroyed Securities
Any Holder of Allowed Claims or Equity Interests relating to the (i)
Exchange Notes, (ii) Original Notes, (iii) Subordinated Debentures, (iv) CNC
Common Stock, or (v) CNC Preferred Stock that is evidenced by a note or by a
stock certificate which has been lost, stolen, mutilated or destroyed shall, in
lieu of surrendering such note or stock certificate, deliver to such relevant
Distribution Agent: (a) an affidavit of loss reasonably satisfactory to the
Distribution Agent setting forth the unavailability of the note or the stock
certificate; and (b) such additional indemnity as may reasonably be required by
the Distribution Agent to hold the Distribution Agent harmless from any damages,
liabilities or costs incurred in treating such individual as a Holder of an
Allowed Claim or Equity Interest. Upon compliance with this procedure by a
Holder of an Allowed Claim or Equity Interest evidenced by such a lost, stolen,
mutilated or destroyed note or stock certificate, such Holder shall, for all
purposes under the Plan, be deemed to have surrendered such note or certificate.
Article VIII.
PROCEDURES FOR RESOLUTION OF DISPUTED, CONTINGENT
AND UNLIQUIDATED CLAIMS OR EQUITY INTERESTS
A. Resolution of Disputed Claims
1. Prosecution of Objections to Claims
After the Effective Date, the Reorganized Debtors (for Claims against the
Reorganized Debtors) shall have the exclusive authority on or before the Claims
Objection Bar Date to file objections, settle, compromise, withdraw or litigate
to judgment objections to Claims or Equity Interests. From and after the
Effective Date, the Debtors and Reorganized Debtors may settle or compromise any
Disputed Claim or Equity Interest without approval of the Bankruptcy Court. The
Debtors, Reorganizing Debtors and Reorganized Debtors also reserve the right to
resolve any Disputed Claims or Equity Interests outside the Bankruptcy Court
under applicable governing law.
2. Estimation of Claims and Equity Interests
The Reorganizing Debtors and the Reorganized Debtors may, at any time,
request that the Bankruptcy Court estimate any contingent or unliquidated Claim
or Equity Interest pursuant to section 502(c) of the Bankruptcy Code regardless
of whether such Reorganizing Debtor or Reorganized Debtor has previously
objected to such Claim
46
or Equity Interest or whether the Bankruptcy Court has ruled on any such
objection, and the Bankruptcy Court will retain jurisdiction to estimate any
Claim or Equity Interest at any time during litigation concerning any objection
to any Claim or Equity Interest, including during the pendency of any appeal
relating to any such objection. In the event that the Bankruptcy Court estimates
any contingent or unliquidated Claim, that estimated amount will constitute
either the Allowed amount of such Claim or a maximum limitation on such Claim,
as determined by the Bankruptcy Court. If the estimated amount constitutes a
maximum limitation on such Claim, the relevant Reorganizing Debtor or
Reorganized Debtor may elect to pursue any supplemental proceedings to object to
any ultimate payment on such Claim. All of the aforementioned Claims or Equity
Interests and objection, estimation and resolution procedures are cumulative and
not necessarily exclusive of one another. Claims and Equity Interests may be
estimated and subsequently compromised, settled, withdrawn or resolved by any
mechanism approved by the Bankruptcy Court.
3. Payments and Distributions on Disputed Claims
Notwithstanding any provision herein to the contrary, except as otherwise
agreed by a Reorganizing Debtor or Reorganized Debtor (for Claims against such
Reorganizing Debtors) in its sole discretion, no partial payments and no partial
distributions will be made with respect to a Disputed Claim until the resolution
of such disputes by settlement or Final Order. No later than a Business Day that
is 20 calendar days after the calendar quarter in which a Disputed Claim becomes
an Allowed Claim, the Holder of such Allowed Claim will receive all payments and
distributions to which such Holder is then entitled under the Plan.
Notwithstanding the foregoing, any Person or Entity who holds both an Allowed
Claim(s) and a Disputed Claim(s) will not receive the appropriate payment or
distribution on the Allowed Claim(s) except, as otherwise agreed by such
Reorganizing Debtor or Reorganized Debtor, as the case may be, in its sole
discretion, until the Disputed Claim(s) are resolved by settlement or Final
Order. In the event that there are Disputed Claims requiring adjudication and
resolution, the Reorganizing Debtors and Reorganized Debtors reserve the right,
or upon order of the Court, to establish appropriate reserves for potential
payment of such Claims.
B. Allowance of Claims and Equity Interests
Except as expressly provided herein or in any order entered in the Chapter
11 Cases prior to the Effective Date (including the Confirmation Order), no
Claim or Equity Interest shall be deemed Allowed, unless and until such Claim or
Equity Interest is deemed Allowed under the Bankruptcy Code or the Bankruptcy
Court enters a Final Order in the Chapter 11 Cases allowing such Claim or Equity
Interest. Except as expressly provided in the Plan or any order entered in the
Chapter 11 Cases prior to the Effective Date (including the Confirmation Order),
the Reorganizing Debtors (for Claims against the Reorganizing Debtors) or
Reorganized Debtors after Confirmation will have and retain any and all rights
and defenses such Debtor had with respect to any Claim or Equity Interest as of
Petition Date.
C. Controversy Concerning Impairment
If a controversy arises as to whether any Claims or Equity Interests, or
any Class of Claims or Equity Interests, are Impaired under the Plan, the
Bankruptcy Court shall, after notice and a hearing, determine such controversy
before the Confirmation Date.
D. Reserve of New CNC Common Stock
On the Effective Date, CNC shall maintain in reserve shares of New CNC
Common Stock as the New CNC Common Stock Holdback. Deemed amounts shall
determine the New CNC Common Stock Holdback. The New CNC Common Stock Holdback,
along with any dividends or other distributions accruing with respect thereto,
shall be held for the Holders of Class 4A, 8A, and 6B Claims that are Disputed
or do not assert a sum certain. As Disputed and unliquidated Class 4A, 8A, and
6B Claims are resolved by the Bankruptcy Court, or higher court if a stay is
obtained, (a) CNC shall distribute, in accordance with the terms hereof, New CNC
Common Stock to Holders of Allowed Class 4A, 8A, and 6B Claims (along with
dividends and distributions that accrue after the Effective Date), and (b) the
New CNC Common Stock Holdback shall be adjusted. If allowance or disallowance of
a Claim
47
affects the New CNC Common Stock Holdback, distributions of New CNC Common Stock
that are consequently no longer reserved will occur annually on each anniversary
of the Effective Date, or more frequently, as determined by New CNC in its sole
and absolute discretion.
Article IX.
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. Conditions to Confirmation
The following are conditions precedent to confirmation of this Plan that
must be (i) satisfied or (ii) waived in accordance with Article IX.C below:
1. The Bankruptcy Court shall have entered an order, in form and substance
reasonably acceptable to the Debtors, the Noteholder Subcommittee, and the
Lender Subcommittee, approving the Disclosure Statement with respect to this
Plan as containing adequate information within the meaning of section 1125 of
the Bankruptcy Code.
2. The proposed Confirmation Order shall be in form and substance
reasonably acceptable to the Debtors, the Noteholder Subcommittee, and the
Lender Subcommittee.
3. The Plan Supplement and all of the schedules, documents, and exhibits
contained therein shall be in form and substance satisfactory to the Debtors,
the Noteholder Subcommittee, and the Lender Subcommittee.
4. The Deemed amount of the Reorganizing Debtor General Unsecured Claims
against CIHC being no greater than the CIHC General Unsecured Claims Cap.
5. The TOPrS 9019 Motion shall have been approved by the Bankruptcy Court.
B. Conditions Precedent to Consummation
The following are conditions precedent to Consummation of this Plan that
must be (i) satisfied or (ii) waived in accordance with Article IX.C below:
1. The Confirmation Order becoming a Final Order in form and substance
reasonably satisfactory to the Debtors, the Noteholder Subcommittee and the
Lender Subcommittee;
2. The Plan Supplement and all of the schedules, documents and exhibits
contained therein shall be in form and substance satisfactory to the Debtors,
the Noteholder Subcommittee and the Lender Subcommittee.
3. The following agreements, instruments and documents, in form and
substance satisfactory to the relevant Debtor, the Noteholder Subcommittee and
the Lender Subcommittee, becoming effective:
(a) the New CNC Charter, New CNC By-laws and any certificate of
designation providing for the New CNC Preferred Stock;
(b) the New Credit Facility;
(c) the New CNC Warrant Agreement;
(d) the Registration Rights Agreements;
4. Obtaining all necessary regulatory approvals for (a) Consummation of the
Plan and (b) approval of the application for change of control as a result of
stock ownership.
48
5. CIHC distributing all of the capital stock of the Residual Subsidiaries
and to the extent not included in the assets of the Residual Subsidiaries, any
other Residual Assets of CIHC or its Subsidiaries to CNC in the form of a
dividend;
6. The Residual Trust being established, and the Residual Assets being
vested in Old CNC without further action on the part of Old CNC, CIHC, the
Residual Trustee or any other Person;
7. The Residual Trustee being identified and being duly appointed and
qualified to serve;
8. Old CNC issuing the Residual Share to the Residual Trust;
9. The Deemed amount of the Reorganizing Debtor General Unsecured Claims
against CIHC being no more than the CIHC General Unsecured Claims Cap;
10. The CFC Subsidiary Guarantee Claims shall have been released, cancelled
or estimated at zero.
11. The board of directors of New CNC shall have been selected.
C. Waiver of Conditions
The Debtors, with the prior written consent of the Conseco Creditors
Committee, in the Debtors' reasonable discretion, may waive any of the
conditions to Confirmation of the Plan and/or Consummation of the Plan set forth
in Article IX at any time, without notice, without leave or order of the
Bankruptcy Court, and without any formal action other than proceeding to conform
and/or consummate the Plan; provided that (i) the conditions set forth in
sections A.1, A.2, A.3, A.4, B.1, B.2, B.3, B.9 and B.11 of this Article IX may
be waived only with the prior written consent of the Debtors, the Noteholder
Subcommittee and the Lender Subcommittee in their respective reasonable
discretion, and (ii) the condition set forth in section B.4.(b) may only be
waived with the prior written consent of the applicant of the referred-to
application, consistent with its fiduciary duties.
D. Effect of Non-Occurrence of Conditions to Consummation
If the Consummation of the Plan does not occur, the Plan shall be null and
void in all respects and nothing contained in the Plan or the Disclosure
Statement shall: (1) constitute a waiver or release of any Claims by or against,
or any Equity Interests in any Debtor; (2) prejudice in any manner the rights of
any Debtor; or (3) constitute an admission, acknowledgment, offer or undertaking
by any Debtor in any respect.
Article X.
RELEASE, INJUNCTIVE AND RELATED PROVISIONS
A. Compromise, Settlement and Discharge
The allowance, classification and treatment of all Allowed Claims and
Equity Interests and the respective distributions and treatments hereunder take
into account and/or conform to the relative priority and rights of the Claims
and Equity Interests in each Class in connection with any contractual, legal and
equitable subordination rights relating thereto whether arising under general
principles of equitable subordination, section 510(b) of the Bankruptcy Code or
otherwise, and, as of the Effective Date, any and all such rights are settled,
compromised, discharged and released pursuant hereto. In addition, the
allowance, classification and treatment of Allowed Claims in Classes 4A, 5A, 6A,
4B, 5B and 6B takes into account any Causes of Action, claims or counterclaims,
whether under the Bankruptcy Code or otherwise applicable law, that may exist
between the Debtors and the Holders of such Claims or among the Holders of such
Claims and other Holders of Claims or Equity Interests, and, as of the Effective
Date, any and all such Causes of Action, claims and counterclaims are settled,
compromised and released pursuant hereto. The Confirmation Order shall approve
the releases by all Persons and Entities of such contractual, legal and
equitable subordination rights or Causes of Action, claims or counterclaims
against such Holder satisfied,
49
compromised and settled in this manner, provided, however, the Guarantees of D&O
Credit Facilities are not cancelled or discharged solely to empower New CNC to
collect amounts the Ineligible Persons (as defined in Article V.K.5 hereof) owe
under the D&O Credit Facilities and related documents.
B. Releases by the Debtors
Except as otherwise specifically provided herein or in the Plan Supplement,
for good and valuable consideration, including the service of the Releasees to
facilitate the expeditious reorganization of the Debtors and the implementation
of the restructuring contemplated by the Plan, and the settlement with Lehman,
the Releasees and Lehman, on and after the Effective Date, are deemed released
by the Debtors and Reorganized Debtors from any and all Claims (as defined in
section 101(5) of the Bankruptcy Code), obligations, rights, suits, damages,
Causes of Action, remedies and liabilities whatsoever, including any derivative
Claims asserted on behalf of a Debtor, whether known or unknown, foreseen or
unforeseen, existing or hereinafter arising, in law, equity or otherwise, that
the Debtors, Reorganized Debtors or their subsidiaries would have been legally
entitled to assert in their own right (whether individually or collectively) or
on behalf of the Holder of any Claim or Equity Interest or other Person or
Entity, based in whole or in part upon any act or omission, transaction,
agreement, event or other occurrence taking place on or before the Effective
Date, other than Claims or liabilities arising out of or relating to (a) any act
or omission of a Releasee that constitutes (1) a failure to perform the duty to
act in good faith, with the care of an ordinarily prudent person and in a manner
the Releasee reasonably believed to be in the best interests of the corporation
(to the extent such duty is imposed by applicable non-bankruptcy law), or (2)
such failure to perform constitutes willful misconduct, or recklessness, or
gross negligence, or (b) any Releasee's obligations to repay its obligations
under the D&O Credit Facilities or related documents; provided, however, that
any such Release is conditional upon the Releasee's waiver of any prepetition
claim of such Releasee against the Debtors or Reorganized Debtors other than for
compensation in the ordinary course of business, as set forth in the Plan, or
claims related to such Releasee's obligations to repay its obligations under the
D&O Credit Facilities or related documents.
C. Releases by Holders of Claims
On and after the Effective Date, each Consenting Party shall be deemed to
have unconditionally released the Releasees from any and all Claims (as defined
in section 101(5) of the Bankruptcy Code), obligations, rights, suits, damages,
Causes of Action, remedies and liabilities whatsoever, including any derivative
Claims asserted on behalf of a Debtor, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, in law, equity or otherwise, that
such Person or Entity would have been legally entitled to assert (whether
individually or collectively), based in whole or in part upon any act or
omission, transaction, agreement, event or other occurrence taking place on or
before the Effective Date in any way relating or pertaining to (w) the purchase
or sale, or the rescission of a purchase or sale, of any security of a Debtor,
(x) a Debtor or Reorganized Debtor, (y) the Chapter 11 Cases, or (z) the
negotiation, formulation and preparation of the Plan, or any related agreements,
instruments or other documents. No portion of the limited releases by the
Consenting Party in any way impairs any Cause of Action, liability, Claim or
right arising out of or relating to (a) any act or omission of a Releasee that
constitutes (1) a failure to perform the duty to act in good faith, with the
care of an ordinarily prudent person and in a manner the Releasee reasonably
believed to be in the best interests of the corporation (to the extent such duty
is imposed by applicable non-bankruptcy law), or (2) constitutes willful
misconduct, gross negligence, or recklessness, or (b) any Releasee's obligations
to repay its obligations under the D&O Credit Facilities or related documents;
provided, however, that any such Release is conditional upon the Releasee's
waiver of any prepetition claim of such Releasee against the Debtors or
Reorganized Debtors other than for compensation in the ordinary course of
business, as set forth in the Plan, or claims related to such Releasee's
obligations to repay its obligations under the D&O Credit Facilities or related
documents.
D. Exculpation
The Debtors, Reorganizing Debtors, Releasees, Noteholder Subcommittee,
Lender Subcommittee, Official Committees, Unofficial Noteholder Committee,
Unofficial Bank Committee and their respective members, and the employees,
agents, and professionals of each of the foregoing (acting in such capacity)
shall neither have nor incur any liability to any Person or Entity for any
prepetition or postpetition act taken, or omitted to be taken, in
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connection with, or related to formulating, negotiating, preparing,
disseminating, implementing, administering, Confirming or Consummating the Plan,
the Disclosure Statement, or any contract, instrument, release or any other
agreement or document created, or entered into, in connection with the Plan,
including but not limited to the TOPrS Settlement Recovery and the TOPrS
Settlement as reflected in the TOPrS 9019 Motion, or any other pre- or
postpetition act taken, or omitted to be taken, in connection with, or in
contemplation of the Debtors' restructuring, provided, however, that the
foregoing provisions of this Article X.D shall have no effect on the liability
of any Person or Entity that results from any such act or omission that is
determined in a Final Order to have constituted gross negligence, recklessness
or willful misconduct, and, provided further, that each Exculpated Party shall
be entitled to rely upon the advice of counsel concerning his, her or its duties
pursuant to, or in connection with, the Plan.
E. Preservation of Rights of Action
1. Maintenance of Causes of Action
Except as otherwise provided in the Plan, the Reorganized Debtors shall
retain all rights to commence and pursue, as appropriate, any and all Causes of
Action, whether arising before or after the Petition Date, in any court or other
tribunal including, without limitation, in an adversary proceeding Filed in one
or more of the Chapter 11 Cases including the actions specified in the Plan
Supplement.
Except as otherwise provided in the Plan, in accordance with section
1123(b)(3) of the Bankruptcy Code, any Claims, rights, and Causes of Action that
the respective Reorganizing Debtors may hold against any Entity shall vest in
the Reorganized Debtors, as the case may be. The applicable Reorganized Debtor,
through its authorized agents or representatives, shall retain and may
exclusively enforce any and all such Claims, rights or Causes of Action. The
Reorganized Debtors shall have the exclusive right, authority, and discretion to
institute, prosecute, abandon, settle, or compromise any and all such Claims,
rights, and Causes of Action without the consent or approval of any third party
and without any further order of court.
2. Preservation of All Causes of Action Not Expressly Settled or Released
Unless a Claim or Cause of Action against a Creditor or other Person is
expressly waived, relinquished, released, compromised or settled in the Plan or
any Final Order, the Debtors expressly reserve such Claim or Cause of Action for
later adjudication by the Debtors, and, therefore, no preclusion doctrine,
including, without limitation, the doctrines of res judicata, collateral
estoppel, issue preclusion, Claim preclusion, waiver, estoppel (judicial,
equitable or otherwise) or laches shall apply to such Claims or Causes of Action
upon or after the confirmation or Consummation of the Plan based on the
Disclosure Statement, the Plan or the Confirmation Order, except where such
Claims or Causes of Action have been waived, relinquished, released, compromised
or settled in the Plan or a Final Order. In addition, the Debtors and the
successor entities under the Plan expressly reserve the right to pursue or adopt
any Claims not so waived, relinquished, released, compromised or settled that
are alleged in any lawsuit in which the Debtors are a defendant or an interested
party, against any person or entity, including, without limitation, the
plaintiffs or co-defendants in such lawsuits.
Any Person to whom the Debtors have incurred an obligation (whether on
account of services, purchase or sale of goods or otherwise), or who has
received services from the Debtors or a transfer of money or property of the
Debtors, or who has transacted business with the Debtors, or leased equipment or
property from the Debtors should assume that such obligation, transfer, or
transaction may be reviewed by the Debtors subsequent to the Effective Date and
may, to the extent not theretofore waived, relinquished, released, compromised
or settled, be the subject of an action after the Effective Date, whether or not
(i) such Person has Filed a proof of Claim against the Debtors in the Chapter 11
Cases; (ii) such Person's proof of Claim has been objected to; (iii) such
Person's Claim was included in the Debtors' Schedules; or (iv) such Person's
scheduled Claim has been objected to by the Debtors or has been identified by
the Debtors as disputed, contingent, or unliquidated.
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F. Discharge of Claims and Termination of Equity Interests
Except as otherwise provided herein: (1) the rights afforded herein and the
treatment of all Claims and Equity Interests herein, shall be in exchange for
and in complete satisfaction, discharge and release of Claims and Equity
Interests of any nature whatsoever, including any interest accrued on Claims
from and after the Petition Date, against the Reorganizing or Reorganized
Debtors or any of their assets or properties, (2) on the Effective Date, all
such Claims against, and Equity Interests in, the Reorganizing or Reorganized
Debtors shall be satisfied, discharged and released in full, and (3) all Persons
shall be precluded from asserting against the Reorganizing or Reorganized
Debtors, their successors or their assets or properties any other or further
Claims or Equity Interests based upon any act or omission, transaction or other
activity of any kind or nature that occurred prior to the Confirmation Date.
Article XI.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of
the Effective Date, the Bankruptcy Court shall retain such jurisdiction over the
Chapter 11 Cases after the Effective Date as 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 Equity Interest,
including the resolution of any request for payment of any Administrative Claim
and the resolution of any and all objections to the allowance or priority of
Claims or Equity 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 Confirmation Date;
3. resolve any matters related to the assumption, assumption and assignment
or rejection of any executory contract and unexpired lease to which a Debtor is
party or with respect to which a Debtor may be liable and to hear, determine
and, if necessary, liquidate, any Claims arising therefrom, including those
matters related to the amendment after the Effective Date pursuant to Article V
herein to add any executory contracts or unexpired leases to the list of
executory contracts and unexpired leases to be rejected;
4. ensure that distributions to Holders of Allowed Claims and Allowed
Equity Interests are accomplished pursuant to the provisions hereof;
5. decide or resolve any motions, adversary proceedings (including turnover
actions and efforts to collect loans due the Reorganizing Debtors), contested or
litigated matters and any other matters and grant or deny any applications
involving a Debtor that may be pending on the Effective Date;
6. enter such orders as may be necessary or appropriate to implement or
consummate the provisions hereof and all contracts, instruments, releases,
indentures and other agreements or documents created in connection with the Plan
or the Disclosure Statement;
7. resolve any cases, controversies, suits or disputes that may arise in
connection with the Consummation, interpretation or enforcement of the Plan or
any Person's obligations incurred in connection with the Plan;
8. issue injunctions, enter and implement other orders or take such other
actions as may be necessary or appropriate to restrain interference by any
Person with Consummation or enforcement of the Plan, except as otherwise
provided herein;
9. resolve any cases, controversies, suits or disputes with respect to the
releases, injunction and other provisions contained in Article XI hereof and
enter such orders as may be necessary or appropriate to implement such releases,
injunction and other provisions;
52
10. enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason modified, stayed, reversed, revoked or
vacated;
11. determine any other matters that may arise in connection with or relate
to this Plan, the Disclosure Statement, the Confirmation Order or any contract,
instrument, release, indenture or other agreement or document created in
connection with the Plan or the Disclosure Statement; and
12. enter an order and/or final decree concluding the Chapter 11 Cases.
Article XII.
MISCELLANEOUS PROVISIONS
A. Modification of Plan Supplement
Modification of or amendments to the Plan Supplement, may be Filed with the
Bankruptcy Court no later than the Confirmation Date. Any such modification or
supplement shall be considered a modification of the Plan and shall be made in
accordance with Article XII.E hereof. Upon its Filing, the Plan Supplement may
be inspected in the office of the clerk of the Bankruptcy Court or its designee
during normal business hours. Holders of Claims and Equity Interests may obtain
a copy of the Plan Supplement by contacting Bankruptcy Management Corporation at
1-888-909-0100 or review such documents on the internet at
www.bmccorp.net/Conseco. The documents contained in the Plan Supplement are an
integral part of the Plan and shall be approved by the Bankruptcy Court pursuant
to the Confirmation Order.
B. Effectuating Documents, Further Transactions and Corporation Action
Each of the Debtors and Reorganized Debtors is 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, implement and further evidence the terms and conditions hereof
and the notes and securities issued pursuant hereto.
Prior to, on or after the Effective Date (as appropriate), all matters
provided for hereunder that would otherwise require approval of the shareholders
or directors of the Debtors or Reorganized Debtors shall be deemed to have
occurred and shall be in effect prior to, on or after the Effective Date (as
appropriate) pursuant to the general corporation laws of the State of Delaware,
the State of Indiana, or the State of Illinois (as appropriate) without any
requirement of further action by the shareholders or directors of the Debtors or
Reorganized Debtors.
C. Dissolution of Committee(s)
Upon the Effective Date, the Official Committees shall dissolve, except
with respect to any appeal of an order in the Chapter 11 Cases and applications
for Professional Fees, and members shall be released and discharged from all
rights, duties and liabilities arising from, or related to, the Chapter 11
Cases.
D. Payment of Statutory Fees
All fees payable pursuant to section 1930(a) of Title 28 of the United
States Code, as determined by the Bankruptcy Court at the hearing pursuant to
section 1128 of the Bankruptcy Code, shall be paid for each quarter (including
any fraction thereof) until the Chapter 11 Cases are converted, dismissed or
closed, whichever occurs first.
E. Modification of Plan
Subject to the limitations contained in the Plan,
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(1) the Debtors reserve the right, in accordance with the Bankruptcy Code
and the Bankruptcy Rules, to amend or modify the Plan prior to the entry of the
Confirmation Order; and
(2) after the entry of the Confirmation Order, the Debtors or Reorganized
Debtors, as the case may be, may (with the consent of the Conseco Creditors
Committee whose consent shall not be unreasonably withheld, delayed or denied)),
upon order of the Bankruptcy Court, amend or modify the Plan, in accordance with
section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or
reconcile any inconsistency in the Plan in such manner as may be necessary to
carry out the purpose and intent of the Plan, provided however, that (i) no
material modification of the Plan that adversely affects the treatment of
Classes 6A, 7A, or 5B shall be made without the written consent of the
Noteholder Subcommittee and (ii) no material modification of the Plan that
adversely affects the treatment of Classes 5A or 4B shall be made without the
written consent of the Lender Subcommittee.
F. Revocation of Plan
The Debtors reserve the right (with the prior consent of the Conseco
Creditors Committee) to revoke or withdraw the Plan prior to the Confirmation
Date and to file subsequent plans of reorganization. If a Debtor revokes or
withdraws the Plan, or if Confirmation or Consummation does not occur, then (a)
the Plan shall be null and void in all respects, (b) any settlement or
compromise embodied in the Plan (including the fixing or limiting to an amount
certain any Claim or Equity Interest or Class of Claims or Equity Interests),
assumption or rejection of executory contracts or leases affected by the Plan,
and any document or agreement executed pursuant hereto, shall be deemed null and
void, and (c) nothing contained in the Plan shall (i) constitute a waiver or
release of any Claims by or against, or any Equity Interests in, such Debtor or
any other Person, (ii) prejudice in any manner the rights of such Debtor or any
other Person, or (iii) constitute an admission of any sort by such Debtor or any
other Person.
G. Successors and Assigns
The rights, benefits and obligations of any Person named or referred to
herein shall be binding on, and shall inure to the benefit of any heir,
executor, administrator, successor or assign of such Person.
H. Reservation of Rights
Except as expressly set forth herein, this Plan shall have no force or
effect unless the Bankruptcy Court shall enter the Confirmation Order. None of
the filing of this Plan, any statement or provision contained herein, or the
taking of any action by any Debtor with respect to this Plan, the Disclosure
Statement or Plan Supplement shall be or shall be deemed to be an admission or
waiver of any rights of any Debtor with respect to the Holders of Claims or
Equity Interests prior to the Effective Date.
I. Section 1146 Exemption
Pursuant to section 1146(c) of the Bankruptcy Code, under this Plan, (i)
the issuance, distribution, transfer or exchange of any debt, equity security or
other interest in the Debtors or Reorganized Debtors; (ii) the creation,
modification, consolidation or recording of any mortgage, deed of trust, or
other security interest, or the securing of additional indebtedness by such or
other means; (iii) the making, assignment or recording of any lease or sublease;
or (iv) the making, delivery or recording of any deed or other instrument of
transfer under, in furtherance of, or in connection with, this Plan, including
any deeds, bills of sale, assignments or other instrument of transfer executed
in connection with any transaction arising out of, contemplated by, or in any
way related to this Plan shall not be subject to any document recording tax,
mortgage recording tax, stamp tax or similar government assessment, and the
appropriate state or local government official or agent shall be directed by the
Bankruptcy Court to forego the collection of any such tax or government
assessment and to accept for filing and recording any of the foregoing
instruments or other documents without the payment of any such tax or government
assessment.
All subsequent issuances, transfers or exchanges of securities, or the
making or delivery of any instrument of transfer by the Debtors in the Chapter
11 Cases, whether in connection with a sale under section 363 of the
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Bankruptcy Code or otherwise, shall be deemed to be or have been done in
furtherance of this Plan. Specifically, because sale of the GM Building (or the
entities owning the GM Building or the interest therein), is being conducted
pursuant to this Plan, any instrument of transfer that would effect transfer of
the GM Building as proposed in pleadings filed in these Chapter 11 Cases may not
be taxed under any law imposing a stamp tax or similar tax.
J. Further Assurances
The Debtors, Reorganized Debtors and all Holders of Claims or Equity
Interests receiving distributions hereunder and all other parties in interest
shall, from time to time, prepare, execute and deliver any agreements or
documents and take any other actions as may be necessary or advisable to
effectuate the provisions and intent of this Plan.
K. Service of Documents
Any pleading, notice or other document required by the Plan to be served on
or delivered to the Debtors or Reorganized Debtors shall be sent by first class
U.S. mail, postage prepaid to:
with copies to:
Conseco, Inc. --------------
CIHC, Incorporated
CTIHC, Inc. Kirkland & Ellis LLP
Partners Health Group, Inc. 200 E. Randolph Drive
11825 N. Pennsylvania Street Chicago, Illinois 60601
P.O. Box 1911 (46082) Attn: James H.M. Sprayregen, P.C.
Carmel, Indiana 46032 Anne M. Huber
Attn: General Counsel Anup Sathy
L. Transactions on Business Days
If the date on which a transaction may occur under this Plan shall occur on
a day that is not a Business Day, then such transaction shall instead occur on
the next succeeding Business Day.
M. Filing of Additional Documents
On or before the Effective Date, the Debtors may file with the Bankruptcy
Court such agreements and other documents as may be necessary or appropriate to
effectuate and further evidence the terms and conditions hereof.
N. Term of Injunctions or Stays
Unless otherwise provided herein or in the Confirmation Order, all
injunctions or stays in effect in the Chapter 11 Cases under sections 105 or 362
of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the
Confirmation Date (excluding any injunctions or stays contained in this Plan or
the Confirmation Order) shall remain in full force and effect until the
Effective Date. All injunctions or stays contained in this Plan or the
Confirmation Order shall remain in full force and effect in accordance with
their terms.
O. Entire Agreement
This Plan and the Plan Supplement (as amended) supersede all previous and
contemporaneous negotiations, promises, covenants, agreements, understandings
and representations on such subjects, all of which have become merged and
integrated into this Plan. Specifically, the Plan filed on January 31, 2003, and
the First Amended Plan filed on March 12, 2003, and iterations of such documents
are void and of no legal effect.
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Respectfully Submitted,
CONSECO, INC.
By: /s/ William J. Shea
----------------------------
Name: William J. Shea
Title: President and Chief Executive Officer
CIHC, INCORPORATED
By: /s/ William J. Shea
----------------------------
Name: William J. Shea
Title: President
CTIHC, Inc.
By: /s/ William J. Shea
----------------------------
Name: William J. Shea
Title: President
Partners Health Group Inc.
By: /s/ William J. Shea
----------------------------
Name: William J. Shea
Title: President
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Prepared by:
James H.M. Sprayregen, P.C. (ARDC No. 6190206)
Anne Marrs Huber (ARDC No. 6226828)
Anup Sathy (ARDC No. 6230191)
Roger J. Higgins (ARDC No. 6257915)
Ross M. Kwasteniet (ARDC No. 6276604)
KIRKLAND & ELLIS LLP
200 East Randolph Drive
Chicago, IL 60601-6636
(312) 861-2000 (telephone)
(312) 861-2200 (facsimile)
COUNSEL TO DEBTORS AND DEBTORS IN POSSESSION
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