Exhibit 2.3
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)
)
ORDER CONFIRMING REORGANIZING
DEBTORS' SIXTH AMENDED JOINT PLAN OF REORGANIZATION
PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
The above-captioned debtors and debtors in possession (collectively, the
"Reorganizing Debtors" or the "Debtors") having filed voluntary petitions for
relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy
Code") on December 17, 2002 (the "Petition Date");
The Debtors having filed, on March 18, 2003, the Second Amended Disclosure
Statement for Reorganizing Debtors' Joint Plan of Reorganization Pursuant to
Chapter 11 of the Bankruptcy Code (as amended, the "Disclosure Statement"),
which Disclosure Statement was approved by the Court pursuant to that certain
Order dated March 18, 2003 (the "Solicitation Procedures Order");
The Debtors having filed the Second Joint Plan of Reorganization Pursuant
to Chapter 11 of the United States Bankruptcy Code on March 18, 2003 (the
"Second Amended Plan"), which was an exhibit to the Disclosure Statement;
- ---------------
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 Order does not apply to the Finance Company Debtors (as
defined in the Plan).
The Debtors having filed on August 13, 2003 Debtors' Emergency Motion for
Entry of an Order (I) Approving (A) Notice of the TOPrS Settlement to the
Lenders and TOPrS Holders and (B) Release Provision Opt-Out Notices and (II)
Setting a Hearing Date for Plan Confirmation and Approval of the TOPrS
Settlement and having issued on August 15, 2003 a Notice of Settlement Regarding
TOPrS Claims Pursuant to Fed. R. Bankr. P. 9019 and Opt-Out Form;
The Debtors having filed on September 5, 2003, the Third Amended Plan
Supplement and the Addendum on September 9, 2003 (the "Plan Supplement"), which
includes the New CNC Warrant Agreement; the Debtors having filed on September 9,
2003, the Reorganizing Debtors' Sixth Amended Joint Plan of Reorganization
Pursuant to Chapter 11 of the Bankruptcy Code (as amended, the "Plan"); the
Debtors having distributed the Second Amended Plan and Disclosure Statement to
all Holders of Impaired Claims against the Debtors, together with a solicitation
of votes to accept or reject the Plan, beginning on or about April 3, 2003,
consistent with the Solicitation Procedures Order;(2)
This Court having set May 28, 2003, at 11:00 a.m. central as the date and
time of a hearing pursuant to Rules 3017 and 3018 of the Federal Rules of
Bankruptcy Procedure (the "Bankruptcy Rules") and sections 1126, 1128 and 1129
of the Bankruptcy Code to consider the Confirmation of the Plan (the
"Confirmation Hearing"); this Court having rescheduled the Confirmation Hearing
to June 13, 2003, at 9:00 a.m. central and thereafter until September 9, 2003,
at 1:30 p.m. central;
- ---------------
2 Capitalized terms not defined herein shall have those meanings ascribed to
them in the Plan or in Exhibit A. The rules of interpretation set forth in
Article I.A of the Plan shall apply to these Findings of Fact, Conclusions
of Law and Order (this "Confirmation Order"). If there is any direct
conflict between the terms of the Plan, the Plan Supplement and the terms
of this Confirmation Order, the terms of this Confirmation Order shall
control.
2
The documents listed on Exhibit A having been filed on the dates listed on
Exhibit A;
Objections to Confirmation of the Plan having been filed by numerous
parties, and each such objection having been resolved, withdrawn or overruled;
and an objection (the "TOPrS' Objection") to Confirmation of the Plan having
been filed by the TOPrS' Committee; and the TOPrS' Objection and all evidence
submitted by the TOPrS Committee having been withdrawn as part of the TOPrS
Settlement as defined in the Plan;
This Court having reviewed the Second Amended Plan, the Plan and Disclosure
Statement and the documents listed on Exhibit A and all filed pleadings,
exhibits, statements and comments regarding Confirmation; this Court having
heard the statements of counsel in respect of Confirmation; this Court having
considered all testimony, documents and affidavits regarding Confirmation;
This Order is divided into two parts: (I) Findings of Fact and Conclusions
of Law and (II) the Order;
After due deliberation thereon and good cause appearing therefor, this
Court hereby makes and issues the following Findings of Fact, Conclusions of Law
and Orders:(3)
I
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jurisdiction and Venue
a) On the Petition Date, each Reorganizing Debtor commenced a Chapter 11 Case by
filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code.
The
- ---------------
3 This Confirmation Order constitutes this Court's findings of fact and
conclusions of law under Fed. R. Civ. P. 52, as made applicable by
Bankruptcy Rules 7052 and 9014. Any and all findings of fact shall
constitute findings of fact even if they are Stated as conclusions of law,
and any and all conclusions of law shall constitute conclusions of law even
if they are Stated as findings of fact.
3
Debtors were and are qualified to be debtors under section 109 of the Bankruptcy
Code. Venue in the Northern District of Illinois was proper as of the Petition
Date and continues to be proper. Confirmation of the Plan is a core proceeding
under 28 U.S.C. ss. 157(b)(2). This Court has subject matter jurisdiction over
this matter pursuant to 28 U.S.C. ss. 1334; and the Court has exclusive
jurisdiction to determine whether the Plan complies with the applicable
provisions of the Bankruptcy Code and should be confirmed.
Modifications to the Plan
b) With the exception of the Lender Claims (Classes 5A and 4B) and the
Trust Related Claims (Class 10A), the Plan does not adversely change the
treatment of the Claim of any creditor as compared to the treatment proposed in
the Second Amended Plan attached to the Disclosure Statement. Therefore, under
Rule 3019, creditors who voted to accept the Second Amended Plan (other than the
Lenders and the Trust Related Claims) are deemed to accept the Plan, except to
the extent the Plan provides otherwise. Class 10A is deemed to reject the Plan
and therefore holders of Class 10A Claims were not resolicited. As evidenced by
the Voting Report (as later defined, and as listed as item 29 in Exhibit A), the
Lenders, as Classes 5A-1, 5A-2, 4B-1 and 4B-2, have voted to accept the Plan.
c) On September 8, 2003, the Debtors served the "Notice of Intent to be
Listed on The New York Stock Exchange and Proposed Modifications of the
Certificate of Designations for New CNC Preferred Stock," listed on Exhibit A as
item 32 (the "Preferred Stock Modifications"). The Preferred Stock Modifications
do not adversely change the Plan's treatment of any claim under the Plan and
therefore creditors who voted to accept the Plan will be deemed to have accepted
the Plan, as amended by the Preferred Stock Modifications.
d) Pursuant to an order of this Court dated August 15, 2003, and as
evidenced by the Declaration listed on Exhibit A as item 18.d, the Reorganizing
Debtors sent
4
notices (collectively, the "Creditor Release Provision Opt-Out Notices") on
August 16, 2003, to Holders of Claim in Classes 4A, 6A, 7A, 8A, 5B and 6B. The
Release Provision Opt-Out Notice gave Holders who had not previously voted to
accept the Plan, but who nonetheless would be entitled to receive a distribution
under the Plan, the option to opt-out of the third-party release provision set
forth in Art. X.C. of the Plan (the "Release Provision") by 5:00 p.m. central
September 8, 2003. Holders who had previously voted to accept the Plan are bound
by the Release Provision and thus are not entitled to opt-out pursuant to the
Creditor Release Provision Opt-Out Notice.
e) Pursuant to orders dated August 15, 2003 and August 20, 2003, and as
evidenced by declarations listed as items 18.d and 19.e in Exhibit A, the
Reorganizing Debtors' agent sent notices (collectively, the "TOPrS Opt-Out
Notices" and with the Creditor Release Provision Opt-Out Notices, the "Opt-Out
Notices") to the intermediaries for all holders of Trust Preferred Securities in
compliance with such orders. The TOPrS Opt-Out Notices gave all holders of Trust
Preferred Securities the option to opt-out of the TOPrS Settlement by 5:00 p.m.
central September 8, 2003.
Solicitation Procedures Order
f) On March 18, 2003, the Court entered the Solicitation Procedures Order
that, among other things: (a) approved the Disclosure Statement as containing
adequate information within the meaning of section 1125 of the Bankruptcy Code
and Bankruptcy Rule 3017; (b) fixed time for voting to accept or reject the
plan; (c) fixed May 28, 2003, at 11:00 a.m. central, continued to June 13, 2003,
at 9:00 a.m. central, as the date and time for the commencement of the
Confirmation Hearing; (d) established the objection deadline and procedures for
objecting to the Plan; (e) approved the form and method of notice of the
5
Confirmation Hearing (the "Confirmation Hearing Notice"), and (f) established
the record date and certain procedures for soliciting and tabulating votes with
respect to the Plan.
Publication of Confirmation Hearing Notice
g) As evidenced in the documents listed as items 2, 3, 4 and 5 on Exhibit
A, the Debtors published the Confirmation Hearing Notice in the national
editions of The Wall Street Journal on April 7, 2003, the Indianapolis Star on
April 7, 2003, and the Chicago Tribune on April 7, 2003; and in USA Today on
April 7, May 2, and May 13, 2003.
Voting Report
h) On June 12, 2003, as amended on July 2, 2003 (item 12 in Exhibit A) and
September 9, 2003 (item 29 in Exhibit A), the Debtors filed with the Court a
report certifying the method and results of the Ballot tabulation for each of
the Voting Classes to accept or reject the Plan (as amended, the "Voting
Report").
i) All procedures used to distribute solicitation materials to the
applicable Holders of Claims and Equity Interests and to tabulate the Ballots
were fair and conducted in accordance with the Solicitation Procedures Order,
the Bankruptcy Code, the Bankruptcy Rules, the local rules of the Bankruptcy
Court for the Northern District of Illinois, Eastern Division, and all other
applicable rules, laws and regulations.
j) As evidenced by the Voting Report, as amended, changed Ballots received
after the Voting Deadline were properly tabulated. Pursuant to sections 1124 and
1126 of the Bankruptcy Code, all Impaired Classes entitled to vote on the Second
Amended Plan have voted to accept the Plan, with the exception of Class 10A
Trust Related Claims against CNC. The Trust Related Claims (Class 10A) are
deemed to reject the Plan.
6
Judicial Notice
k) The Court takes judicial notice of the docket of the Chapter 11 Cases
maintained by the Clerk of the Court and/or its duly appointed agent, including,
without limitation, all pleadings and other documents on file, all orders
entered, and all evidence (that was not subsequently withdrawn) and arguments
made, proffered or adduced at the hearings held before the Court during the
pendency of the Chapter 11 Cases. The Court admits into evidence the documents
listed on Exhibit A. Resolutions of objections to Confirmation explained on the
record at the Confirmation Hearing are hereby incorporated by reference.
Transmittal and Mailing of Materials; Notice
l) As evidenced by the Declaration of Voting Agent regarding solicitation
listed as item 11 in Exhibit A, due, adequate and sufficient notice of the
Disclosure Statement and Plan and of the Confirmation Hearing, along with all
deadlines for voting on or objecting to the Plan and notice of the TOPrS
Settlement, has been given to (a) all known Creditors and Holders of Equity
Interests; (b) parties that requested notice in accordance with Bankruptcy Rule
2002; (c) all parties to unexpired leases and executory contracts with the
Debtors, and (d) all taxing authorities listed on the Debtors' Schedules or in
the Debtors' Claims database, in accordance with the procedures set forth in the
Solicitation Procedures Order, in substantial compliance with Bankruptcy Rules
2002(b), 3017 and 3020(b) and the Solicitation Procedures Order, and such
transmittal and service were adequate and sufficient. Adequate and sufficient
notice of the Confirmation Hearing, as continued from time-to-time, and other
bar dates and hearings described in the Solicitation Procedures Order was given
in compliance with the Bankruptcy Rules and Solicitation Procedures Order, and
no other or further notice is or shall be required.
7
Transmittal of Opt-Out Notices; Notice
m) The Opt-Out Notices were properly served pursuant to the Declaration of
Service listed as item 18.d in Exhibit A and the Declaration of Service listed
as item 19.e in Exhibit A. Such notices provided adequate and sufficient
opportunity for entities receiving an Opt-Out Notice to return such opt-out
forms in accordance with applicable law.
Solicitation
n) Votes for acceptance and rejection of the Plan were solicited in good
faith and complied with sections 1125 and 1126 of the Bankruptcy Code, Rules
3017 and 3018 of the Bankruptcy Rules, the Disclosure Statement, the
Solicitation Procedures Order, all other applicable provisions of the Bankruptcy
Code and all other applicable rules, laws and regulations.
o) The Debtors, the Official Committees (and their current and former
members and ex officio members), and their respective directors, officers,
agents, affiliates, representatives, attorneys and advisors have solicited votes
on the Plan in good faith and in compliance with the applicable provisions of
the Bankruptcy Code and the Solicitation Procedures Order and are entitled to
the protections afforded by section 1125(e) of the Bankruptcy Code and the
exculpation provisions set forth in Article X.D of the Plan.
Burden of Proof
p) The Debtors, as proponents of the Plan, have met their burden of proving
the elements of section 1129(a) and (b) of the Bankruptcy Code by a
preponderance of the evidence, which is the applicable evidentiary standard in
this Court. The Court also finds that the Debtors have satisfied the elements of
section 1129(a) and (b) of the Bankruptcy Code by clear and convincing evidence.
8
Compliance with the Requirements of Section 1129 of the Bankruptcy Code
Section 1129(a)(1) - Compliance of the Plan with Applicable Provisions of
the Bankruptcy Code
q) The Plan complies with all applicable provisions of the Bankruptcy Code
as required by section 1129(a)(1) of the Bankruptcy Code, including, without
limitation, sections 1122 and 1123. Pursuant to sections 1122(a) and 1123(a)(1)
of the Bankruptcy Code, Article III of the Plan designates Classes of Claims and
Equity Interests, other than Administrative Claims and Priority Tax Claims.(4)
As required by section 1122(a) of the Bankruptcy Code, each Class of Claims and
Equity Interests contains only Claims or Equity Interests that are substantially
similar to the other Claims or Equity Interests within that Class.
r) Pursuant to section 1123(a)(2) and (3) of the Bankruptcy Code, Article
III of the Plan specifies all Claims that are not Impaired and specifies the
treatment of all Claims and Equity Interests that are Impaired. Pursuant to
section 1123(a)(4) of the Bankruptcy Code, Article III of the Plan also provides
the same treatment for each Claim or Equity Interest within a particular Class.
s) Pursuant to section 1123(a)(5) of the Bankruptcy Code, the Plan provides
adequate and proper means for the Plan's implementation. The Debtors will have,
immediately upon the Effective Date of the Plan, sufficient Cash to make all
payments required to be made on the Effective Date pursuant to the terms of the
Plan. Moreover, Article V and various other provisions of the Plan specifically
provide adequate means for the Plan's implementation, including, without
limitation: (a) the continuation of the corporate existence and the vesting of
assets in the Reorganized Debtors; (b) the adoption of the New CNC Charter and
New CNC
- ---------------
4 The Administrative Claims and the Priority Tax Claims are not required to
be designated pursuant to section 1123(a)(1) of the Bankruptcy Code. 11
U.S.C. ss. 1123(a)(1).
9
By-laws;(5) (c) the cancellation of the Senior Credit Facility, Exchange Notes,
Original Notes, Subordinated Debentures, the 93/94 Notes, Old CNC Common Stock,
and Old CNC Preferred Stock; (d) the authorization and issuance or distribution
of the New Credit Facility, New CNC Common Stock, New CNC Preferred Stock, and
New CNC Warrants, and the execution of related documents; (e) the selection of
the initial directors and officers of New CNC, subject to applicable state
insurance regulatory approval; (f) the creation of the Residual Trust; (g) the
liquidation of Old CNC; (h) the Intercompany Settlement (as described in Article
V.F of the Plan); (i) the TOPrS Settlement (as described in Article V.I of the
Plan); (j) the sale of the GM Building, and (k) the sources of Cash for
distributions under the Plan.
t) The New CNC Charter and New CNC By-laws in the Plan Supplement comply
with section 1123(a)(6) and section 1123(a)(7).
Section 1129(a)(2) - Compliance with Applicable Provisions of the
Bankruptcy Code
u) The Debtors, as proponents of the Plan, have complied with all
applicable provisions of the Bankruptcy Code as required by section 1129(a)(2)
of the Bankruptcy Code, including, without limitation, sections 1125 and 1126
and Bankruptcy Rules 3017, 3018 and 3019. In particular, the Reorganizing
Debtors are proper debtors under section 109 of the Bankruptcy Code and proper
proponents of the Plan under section 1121(a) of the Bankruptcy Code.
Furthermore, the solicitation of acceptances or rejections of the Plan was (i)
pursuant to the Solicitation Procedures Order; (ii) in compliance with all
applicable laws, rules and regulations governing the adequacy of disclosure in
connection with such solicitation; and (iii) solicited after disclosure to
Holders of Claims or Interests of adequate information as defined in
- ---------------
5 Article V.I(1) of the Plan provides for the inclusion in the New CNC
Charter and New CNC By-laws of all provisions required to be included in
the corporate charter of the Reorganized Debtors under section 1123(a)(6)
of the Bankruptcy Code.
10
section 1125(a) of the Bankruptcy Code. Accordingly, the Debtors, the Official
Committees (and their current and former members and ex officio members), and
their respective directors, officers, employees, agents, affiliates and
Professionals have acted in "good faith" within the meaning of section 1125(e)
of the Bankruptcy Code.
Section 1129(a)(3) - Proposal of Plan in Good Faith
v) The Debtors have proposed the Plan in good faith and not by any means
forbidden by law. In determining that the Plan has been proposed in good faith,
the Court has examined the totality of the circumstances surrounding the filing
of the Chapter 11 Cases, the Plan itself, and the process leading to its
formulation. See Bankruptcy Rule 3020(b). The Chapter 11 Cases were filed, and
the Plan was proposed, with the legitimate purpose of allowing the Debtors to
reorganize and emerge from bankruptcy with a capital structure that will allow
them to satisfy their obligations with sufficient liquidity and capital
resources.
Section 1129(a)(4) - Bankruptcy Court Approval of Certain Payments as
Reasonable
w) Pursuant to section 1129(a)(4) of the Bankruptcy Code, the payments to
be made by the Reorganized Debtors for services or for costs in connection with
the Chapter 11 Cases or the Plan, as described (a) in the "Reorganized Debtors'
Section 1129(a)(4) Disclosure" filed on September 4, 2003 or (b) in the Plan,
are approved.
x) State Street Bank and Trust Company shall hold an Allowed Administrative
Claim in the amount of $50,000, but it shall be precluded from asserting
additional claims against the Debtors and/or holders of the Trust Preferred
Securities. Before receiving payment of the $50,000 Allowed Administrative Claim
specified herein, State Street Bank and Trust Company shall return to New CNC
the Subordinated Debentures and related
11
documents as reasonably requested by New CNC. State Street Bank and Trust
Company shall cooperate with New CNC and its agents regarding distributions to
be made under the Plan.
y) In addition, fees and expenses incurred by professionals retained by the
Debtors or an Official Committee shall be payable according to the Orders
approving such firms' retention.
Section 1129(a)(5) - Disclosure of Identity of Proposed Management,
Compensation of Insiders and Consistency of Management Proposals with the
Interests of Creditors and Public Policy
z) Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors have
disclosed the identity of the proposed directors and officers of the Reorganized
Debtors following Confirmation of the Plan and the identity and compensation of
insiders who will be employed or retained by the Reorganized Debtors in the Plan
Supplement.
Section 1129(a)(6) - Approval of Rate Changes
aa) The Debtors' current businesses do not involve the establishment of
rates over which any regulatory commission has or will have jurisdiction after
Confirmation. Section 1129(a)(6) of the Bankruptcy Code is thus not applicable
to these Chapter 11 Cases.
Section 1129(a)(7) - Best Interests of Creditors and Equity Interest
Holders
bb) The liquidation analysis annexed to the Disclosure Statement as Exhibit
B, and the other evidence related thereto that was proffered or adduced at or
prior to, or in affidavits in connection with, the Confirmation Hearing, is
reasonable. The methodology used and assumptions made in the liquidation
analysis, as supplemented by the evidence proffered or adduced at or prior to,
or in affidavits filed in connection with, the Confirmation Hearing, are
reasonable.
cc) With respect to each Impaired Class, each Holder of an Allowed Claim or
Equity Interest in such Class has accepted the Plan or will receive under the
Plan on account of
12
such Claim or Equity Interest property of a value, as of the Effective Date,
that is not less than the amount such Holder would receive if the Debtors were
liquidated on the Effective Date under Chapter 7 of the Bankruptcy Code.
Section 1129(a)(8) - Acceptance of the Plan by Each Impaired Class
dd) As indicated in Articles III and IV of the Plan, the following Classes
are Unimpaired and conclusively presumed to have accepted the Plan:
- -------------------------------------------------------------- -------------------------------------------------------
Description of Class Class Designation
- -------------------------------------------------------------- -------------------------------------------------------
- -------------------------------------------------------------- -------------------------------------------------------
Other Priority Claims 1A, 1B, 1C, 1D
- -------------------------------------------------------------- -------------------------------------------------------
Other CNC Secured Claims 2A
- -------------------------------------------------------------- -------------------------------------------------------
Other Secured Claims 2B, 2C, 2D
- -------------------------------------------------------------- -------------------------------------------------------
Reinstated Intercompany Claims 3A, 3B
- -------------------------------------------------------------- -------------------------------------------------------
Reinstated CIHC Preferred Stock Interests 8B
- -------------------------------------------------------------- -------------------------------------------------------
Convenience Class Claims 9A, 7B
- -------------------------------------------------------------- -------------------------------------------------------
Old CIHC Common Stock Interests 9B
- -------------------------------------------------------------- -------------------------------------------------------
ee) As indicated in the Voting Report, as amended, every Impaired Class
that was entitled to vote has voted to accept the Plan. The following Impaired
Classes voted in favor of the Plan:
- --------------------------------------------------------------- ------------------------------------------------------
Description of Class Class Designation
- --------------------------------------------------------------- ------------------------------------------------------
- --------------------------------------------------------------- ------------------------------------------------------
93/94 Note Claims 4A
- --------------------------------------------------------------- ------------------------------------------------------
Lender Claims 5A-1, 5A-2, 4B-1, 4B-2
- --------------------------------------------------------------- ------------------------------------------------------
Exchange Note Claims 6A, 5B
- --------------------------------------------------------------- ------------------------------------------------------
Original Note Claims 7A
- --------------------------------------------------------------- ------------------------------------------------------
Reorganizing Debtor General Unsecured Claims 8A, 6B, 3C
- --------------------------------------------------------------- ------------------------------------------------------
ff) Because the Plan provides that the Classes listed below will not
receive any distribution or retain any property under the Plan, they are "Deemed
Rejected Classes" and are deemed to have rejected the Plan pursuant to section
1126(g) of the Bankruptcy Code:
13
- --------------------------------------------------------------- ------------------------------------------------------
Class of Claims Class Designation
- --------------------------------------------------------------- ------------------------------------------------------
- --------------------------------------------------------------- ------------------------------------------------------
Old CTIHC Common Stock Interests 4C
- --------------------------------------------------------------- ------------------------------------------------------
Old PHG Common Stock Interests 4D
- --------------------------------------------------------------- ------------------------------------------------------
Discharged Intercompany Claims 10B
- --------------------------------------------------------------- ------------------------------------------------------
Old CNC Series F Preferred Stock Interests 11A-1
- --------------------------------------------------------------- ------------------------------------------------------
Old CNC Other Preferred Stock Interests 11A-2
- --------------------------------------------------------------- ------------------------------------------------------
Old CNC Common Stock Interests 12A
- --------------------------------------------------------------- ------------------------------------------------------
Discharged Intercompany Claims 13A
- --------------------------------------------------------------- ------------------------------------------------------
Securities Claims 14A, 11B
- --------------------------------------------------------------- ------------------------------------------------------
Trust Related Claims 10A
- --------------------------------------------------------------- ------------------------------------------------------
Section 1129(a)(9) - Treatment of Claims Entitled to Priority Pursuant to
Section 507(a) of the Bankruptcy Code
gg) The treatment of Administrative, Priority Tax, and Other Priority
Claims under Articles II.A, II.B and III of the Plan, respectively, satisfies
the requirements of section 1129(a)(9) of the Bankruptcy Code.
hh) To resolve the objection of the Illinois Department of Revenue
("IDOR"), Allowed Claims of the IDOR that have priority under section 507(a)(8)
of the Bankruptcy Code are to be paid, at the option of the Reorganizing
Debtors, either (i) in Cash on the Effective Date or (ii) in Cash over a period
not to exceed six years from the date of assessment of the tax to which the
Allowed Priority Tax Claim relates, with interest at a 9% annual rate
(compounded annually).
Section 1129(a)(10) - Acceptance By At Least One Impaired Class
ii) As set forth in the Voting Report each Impaired Class, other than the
Deemed Rejected Classes, has voted to accept the Plan. Accordingly, section
1129(a)(10) of the Bankruptcy Code is satisfied.
Section 1129(a)(11) - Feasibility of the Plan
jj) The Plan satisfies section 1129(a)(11) of the Bankruptcy Code. Based
upon the evidence proffered or adduced at, or prior to, or in affidavits filed
in connection with the Confirmation Hearing, the Plan is feasible and
Confirmation of the Plan is not likely to be
14
followed by the liquidation, or the need for further financial reorganization,
of the Debtors, the Reorganized Debtors or any successor to the Reorganized
Debtors under the Plan. Furthermore, the Reorganized Debtors will have adequate
capital to meet their ongoing obligations.
Section 1129(a)(12) - Payment of Bankruptcy Fees
kk) In accordance with section 1129(a)(12) of the Bankruptcy Code, Article
XII.D of the Plan provides for the payment of all fees payable under 28 U.S.C.
ss. 1930(a). The Reorganizing Debtors have adequate means to pay all such fees.
Section 1129(a)(13) - Retiree Benefits
ll) In accordance with section 1129(a)(13) of the Bankruptcy Code, Article
VI.E of the Plan provides for the timely payment post-Confirmation of retiree
benefits (as that term is defined in section 1114 of the Bankruptcy Code), if
any, to the extent such retiree benefits are payable by the Reorganizing
Debtors. Such retiree benefits include those that arise from the plans, funds or
programs described in the Plan Supplement.
Section 1129(b) - Confirmation of Plan Over Nonacceptance of Impaired Class
mm) Pursuant to section 1129(b)(1) of the Bankruptcy Code, the Plan may be
confirmed notwithstanding the fact that not all Impaired Classes have voted to
accept the Plan. All of the requirements of section 1129(a) of the Bankruptcy
Code other than section 1129(a)(8) have been met. All Classes of Impaired Claims
have voted to accept the Plan other than the Deemed Rejected Classes.
nn) With respect to the Deemed Rejected Classes, no Holders of Claims or
Interests subordinate to the Holders of the Claims and Interests in the Deemed
Rejected Classes will receive or retain any property under the Plan. Accordingly
the requirements of sections
15
1129(b)(2)(B)(ii) and 1129(b)(2)(C)(ii) are satisfied with respect to Class 10A
and the Deemed Rejected Classes, and the Plan is fair and equitable with respect
to such Classes.
oo) Pursuant to section 1129(b) of the Bankruptcy Code, the Court finds
that the Plan is "fair and equitable" (as defined in section 1129(b) of the
Bankruptcy Code) with respect to Impaired Classes that have not voted to accept
the Plan and the Plan does not unfairly discriminate against such Classes.
pp) The Plan provides for distribution to Classes 7A (Original Note
Claims), 8A (CNC General Unsecured Claims) and 6B (CIHC General Unsecured
Claims), notwithstanding that Classes 6A and 5B (Exchange Note Claims) will not
receive full payment on their Claims. The distributions to such junior Classes
do not violate the absolute priority rule of section 1129(b)(2) of the
Bankruptcy Code because such distributions are based on the agreement of Classes
6A and 5B (Exchange Note Claims) to voluntarily allocate a portion of the value
that they would otherwise receive to these Classes. Such value was provided to
Classes 7A and 8A to ensure that the Debtors' reorganization efforts are
completed consensually and as expeditiously as possible. The subordination
provisions in the prepetition documents that govern the Subordinated Debentures
and the Trust Preferred Securities are enforceable in a bankruptcy proceeding
and therefore the Plan's distributions do not violate the absolute priority
rule.
Principal Purpose of the Plan Is Not Avoidance of Taxes
qq) The principal purpose of the Plan is not the avoidance of taxes or the
avoidance of the application of Section 5 of the Securities Act of 1933 (15
U.S.C. ss. 77e), and no governmental entity has filed any objection asserting
such avoidance.
16
Objections to Confirmation of the Plan
rr) All objections to Confirmation filed with the Court have been
withdrawn, settled, or are overruled on their merits.
Issuance and Distribution of the New Securities
ss) The Debtors and each of the current and former members and ex officio
members of the Official Committees (and each of their respective affiliates,
agents, directors, officers, employees, advisors, and attorneys) have, and upon
Confirmation of the Plan shall be deemed to have, participated in good faith and
in compliance with the applicable provisions of the Bankruptcy Code with regard
to the distribution of the New Securities (as defined below) under the 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 the Plan or such distributions
made pursuant to the Plan.
tt) The issuance and distribution of all of the New Credit Facility, New CNC
Common Stock, New CNC Warrants, and the New CNC Preferred Stock (collectively,
the "New Securities") when issued or distributed as provided in the Plan, will
be duly authorized, validly issued and, if applicable, fully paid and
nonassessable. The issuance of the New Securities (including, without
limitation, the fee payable to Houlihan Lokey Howard & Zukin under its
engagement letter, which includes 462,444 shares of New CNC Common Stock) are in
exchange for Claims against or Interests in the Debtors, or principally in such
exchange and partly for cash or property, within the meaning of section
1145(a)(1) of the Bankruptcy Code. In addition, under section 1145 of the
Bankruptcy Code, to the extent, if any, that the above-listed items constitute
"securities" (a) the offering of such items is exempt and the issuance and
distribution of such items will be exempt from Section 5 of the Securities Act
and any State or local law requiring registration prior to the offering,
issuance, distribution, or sale of securities and (b) all
17
of the above-described items will be freely tradeable by the recipients thereof,
subject to (i) the provisions of section 1145(b)(1) of the Bankruptcy Code
relating to the definition of an underwriter in Section 2(a)(11) of the
Securities Act, and compliance with any rules and regulations of the SEC, if
any, applicable at the time of any future transfer of such securities or
instruments; (ii) the restrictions, if any, on the transferability of such
securities and instruments; and (iii) applicable regulatory approval.
Executory Contracts and Unexpired Leases
uu) On or about May 16, 2003, July 24, 2003, and July 31, 2003, the Debtors
sent notice to counterparties to contracts and leases that the Debtors intend to
assume pursuant to the Plan, including a proposed cure amount, if any. Annexed
hereto as Exhibit B is a list of contracts and leases that the Debtors have
assumed pursuant to such notices (the "Assumed Contracts") and the Claims
asserted by the contract counterparties. The Claims listed on Exhibit B are
hereby deemed disallowed.
Releases and Discharges
vv) The releases and discharges of Claims and Causes of Action described in
Article X of the Plan and this Order, including releases by Holders of Claims,
constitute good faith compromises and settlements of the matters covered thereby
and are consensual. Such compromises and settlements are made in exchange for
consideration and are in the best interest of Holders of Claims, are fair,
equitable, reasonable, and are integral elements of the resolution of the
Chapter 11 Cases in accordance with the Plan. Each of the discharge, release,
indemnification and exculpation provisions set forth in the Plan and this Order
(i) is within the jurisdiction of the Court under 28 U.S.C. ss.ss. 1334(a),
1334(b) and 1334(d); (ii) is an essential means of implementing the Plan
pursuant to section 1123(a)(6) of the Bankruptcy Code; (iii) is an integral
element of the transactions incorporated into the Plan; (iv) confers material
benefit
18
on, and is in the best interests of, the Debtors, their estates and their
creditors; (v) is important to the overall objectives of the Plan to finally
resolve all Claims among or against the parties-in-interest in the Chapter 11
Cases with respect to the Debtors; and (vi) is consistent with sections 105,
1123, 1129 and other applicable provisions of the Bankruptcy Code.
Preservation of Causes of Action
ww) It is in the best interests of the Creditors and Interest Holders of
the Debtors' Estates that all Causes of Action not expressly waived,
relinquished, released, compromised or settled in the Plan or any Final Order be
retained by the Reorganizing Debtors (before the Effective Date) and the
Reorganized Debtors (after the Effective Date) pursuant to Article X of the
Plan, to preserve the value of the Debtors' Estates.
Approval of Settlements and Compromises
xx) Pursuant to Bankruptcy Rule 9019 and any applicable State law, and as
consideration for the distributions and other benefits provided under the Plan,
all settlements and compromises of Claims, Causes of Action and objections to
Claims that are embodied in the Plan (including, without limitation, the
Intercompany Settlement in Article V.F of the Plan and the TOPrS Settlement of
Article V.I. of the Plan) constitute a good faith compromise and settlement of
any Claims, Causes of Action and objections to Claims, which compromises and
settlements are hereby approved as fair, equitable, reasonable, and appropriate
in light of the relevant facts and circumstances underlying such compromise and
settlement, and are in the best interests of the Debtors and their Estates and
Creditors.
Satisfaction of Conditions to Confirmation
yy) Each of the conditions precedent to the entry of this Confirmation
Order, as set forth in Article IX.A of the Plan, has been satisfied or waived in
accordance with the Plan.
19
Likelihood of Satisfaction of Conditions Precedent to Consummation
zz) Each of the conditions precedent to the Effective Date, as set forth in
Article IX.B of the Plan, is reasonably likely to be satisfied.
Retention of Jurisdiction
aaa) The Court may properly retain jurisdiction over the matters set forth
in Article XI of the Plan.
Exemptions from Taxation
bbb) No property located in the State of Illinois that would be the subject
of an Illinois transfer tax that would be the subject of a section 1146(c)
exclusion has been sold by the Reorganizing Debtors during the course of these
Chapter 11 Cases.
Based on the foregoing, it is hereby ORDERED:
II
ORDER
Confirmation of the Plan
1. The Plan and Plan Supplement, substantially in the form as amended, and
each of its provisions are confirmed in each and every respect pursuant to
section 1129 of the Bankruptcy Code. The terms of the Plan, the Plan Supplement,
and exhibits thereto are incorporated by reference into, and are an integral
part of, this Confirmation Order. The terms of the Plan, the Plan Supplement,
all exhibits thereto, and all other relevant and necessary documents, shall be
effective and binding as of the Effective Date of the Plan. Notwithstanding the
foregoing, if there is any direct conflict between the terms of the Plan or the
Plan Supplement and the terms of this Confirmation Order, the terms of this
Confirmation Order shall control. All objections and responses to and Statements
and comments regarding the Plan, to the extent not
20
already withdrawn, waived, or settled, and all reservation of rights included
therein, shall be, and hereby are, overruled.
Plan Modifications
2. All modifications or amendments to the Plan since the solicitation
(including those summarized in the Notice listed as item 32 of Exhibit A) are
approved pursuant to section 1127(a) of the Bankruptcy Code and do not require
additional disclosure or resolicitation under Rule 3019.
Plan Classification Controlling
3. The classification of Claims and Equity Interests for purposes of the
distributions to be made under the Plan shall be governed solely by the terms of
the Plan. The classifications set forth on the Ballots tendered to or returned
by the Debtors' Creditors in connection with voting on the Plan (a) were set
forth on the Ballots solely for purposes of voting to accept or reject the Plan;
(b) do not necessarily represent, and in no event shall be deemed to modify or
otherwise affect, the actual classification of such Claims under the Plan for
distribution purposes; (c) may not be relied upon by any Creditor as
representing the actual classification of such Claims under the Plan for
distribution purposes; and (d) shall not be binding on the Debtors or the
Reorganized Debtors.
Settlement of Claims and Interests
4. In consideration of the Plan, certain U.S. Bank Claims, Lehman Claims,
Intercompany Claims, 93/94 Note Claims, Exchange Note Claims, Original Note
Claims, Lender Claims, and Claims asserted by or for the Releasees against the
Debtors are hereby resolved as follows:
21
- -------------------------------------------- ----------------- ----------------------- ---------------------------
TYPE OF CLAIM CLAIM NO. ALLEGED AMOUNT OF ALLOWED AMOUNT OF
CLAIM CLAIM
- -------------------------------------------- ----------------- ----------------------- ---------------------------
- -------------------------------------------- ----------------- ----------------------- ---------------------------
U.S. BANK CLAIMS
U S Bank National Association, as 49674-000137 $1,000,000,000 Disallowed
Securitization Trustee
U S Bank National Association, as 49672-006859 $1,000,000,000 Disallowed
Securitization Trustee
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
LEHMAN CLAIMS 49672-005452 $6,000,000 Disallowed on Effective
Date of the Finance
Company Plans
49674-000059 $6,000,000 Disallowed on Effective
Date of the Finance
Company Plans
49674-000055 $125,000,000 Disallowed
49674-000056 $125,000,000 Disallowed
49674-000057 $125,000,000 Disallowed
49674-000058 $125,000,000 Disallowed
49674-000078 Contingent Disallowed
49672-005451 Contingent Disallowed
49672-006864 Contingent Disallowed
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
INTERCOMPANY CLAIMS
Conseco Finance Corp. 49672-007941 $30,271,727 Disallowed
Conseco Agency Inc. 49672-007943 $394,208 Disallowed
Conseco Fin. Consumer Discount Co. 49672-007946 $186,944 Disallowed
Consumer Finance Corp. Alabama 49672-007944 $239,776 Disallowed
Conseco Finance Credit Corp. 49672-007945 $105,664 Disallowed
Conseco Finance Servicing Corp. 49672-007942 $14,878,304 Disallowed
Conseco Agency Inc. 49674-000256 $394,208 Disallowed
Conseco Annuity Assurance Company 49674-000234 Not Stated Disallowed
Conseco Fin. Consumer Discount Co. 49674-000259 $186,944 Disallowed
Conseco Finance Corp. 49674-000254 $337,630,130 See Plan Article V.F.
Conseco Finance Corp. Alabama 49674-000257 $239,776 Disallowed
Conseco Finance Credit Corp. 49674-000258 $105,664 Disallowed
Conseco Finance Servicing Corp. 49674-000255 $14,878,304 Disallowed
Conseco Life Insurance Company 49674-000232 Not Stated Disallowed
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
93/94 NOTE CLAIMS 49674-000197 $93,711,875.12 Disallowed
49672-006935 $93,711,875.12 Disallowed
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
EXCHANGE NOTE CLAIMS 49674-006930 $382,472,524.69 Allowed in the aggregate
49674-006931 $988,502,907.35 in the amount of
49674-000079 $382,472,526.63 $1,370,975,431.97 and
49674-000080 $988,502,907.35 postpetition interest
will not be allowed to
calculate Total Exchange
Note Claim
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
ORIGINAL NOTE CLAIMS 49672-06393 $1,242,088,736.16 Allowed in the aggregate
in the amount of
$1,242,444,895.76
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
22
- -------------------------------------------- ----------------- ----------------------- ---------------------------
TYPE OF CLAIM CLAIM NO. ALLEGED AMOUNT OF ALLOWED AMOUNT OF
CLAIM CLAIM
- -------------------------------------------- ----------------- ----------------------- ---------------------------
- -------------------------------------------- ----------------- ----------------------- ---------------------------
LENDER CLAIMS 49672-003986 $145,535,970.27
49672-003982 $10,020,041.41
49672-003983 $133,649,282.13
49672-003984 $205,583,532.24 Allowed as set forth in
49672-003985 $1,537,426,989.45 Article III of the Plan
49674-000020 $1,537,426,989.45
49674-000021 $205,583,532.24
49674-000022 $145,535,970.27
49674-000023 $10,020,041.41
49674-000024 $133,649,282.13
-------------------------------------------- ----------------- ----------------------- ---------------------------
-------------------------------------------- ----------------- ----------------------- ---------------------------
RELEASEES
Barea, Julio A 49674-000236 Unknown Disallowed
Barea, Julio A 49672-007816 Unknown Disallowed
Bellamy, Carol 49672-007817 Unknown Disallowed
Bellamy, Carol 49674-000237 Unknown Disallowed
Berube, Edward M 49672-007834 Unknown Disallowed
Berube, Edward M 49674-000247 Unknown Disallowed
Bublitz, Maxwell E. 49672-007827 Unknown Disallowed
Bublitz, Maxwell E 49674-000248 Unknown Disallowed
Bullis, Eugene M 49674-000231 Unknown Disallowed
Bullis, Eugene M 49674-000225 Unknown Disallowed
Bullis, Eugene M 49672-007825 Unknown Disallowed
Coss, Lawrence M 49674-000238 Unknown Disallowed
Coss, Lawrence M 49672-007836 Unknown Disallowed
Devanney, William T Jr. 49674-000224 Unknown Disallowed
Dykhouse, Richard R 49672-007831 Unknown Disallowed
Dykhouse, Richard R 49674-000251 Unknown Disallowed
Hagerty, Thomas M * 49672-006453 $3,500 + $3,500
Hagerty, Thomas M 49672-007837 Unknown Disallowed
Hagerty, Thomas M 49674-000239 Unknown Disallowed
Harkins, David V ** 49672-006508 $6,500 + $6,500
Harkins, David V 49674-000240 Unknown Disallowed
Harkins, David V 49672-007818 Unknown Disallowed
Hathaway, M Phil 49674-000241 Unknown Disallowed
Hathaway, M Phil 49672-007819 Unknown Disallowed
Herzog, David K 49672-007824 Unknown Disallowed
Herzog, David K 49674-000227 Unknown Disallowed
Herzog, David K 49674-000220 Unknown Disallowed
Hill, Tammy M 49672-007828 Unknown Disallowed
Hill, Tammy M 49674-000249 Unknown Disallowed
Kiefer, Kathleen S 49672-007832 Unknown Disallowed
Kiefer, Kathleen S 49674-000252 Unknown Disallowed
Kindig, Karl W 49674-000230 Unknown Disallowed
Kindig, Karl W 49674-000253 Unknown Disallowed
Kindig, Karl W 49672-007833 Unknown Disallowed
Kindig, Karl W 49674-000221 Unknown Disallowed
-------------------------------------------- ----------------- ----------------------- ---------------------------
<FN>
- ------------------
* Claim No. 49672-006453 is allowed in the amount of $3,500 as compensation
for director's fees but the remainder of the claim is disallowed for all
purposes.
** Claim No. 49672-006508 is allowed in the amount of $6,500 as compensation
for director's fees but the remainder of the claim is disallowed for all
purposes.
</FN>
23
- -------------------------------------------- ----------------- ----------------------- ---------------------------
TYPE OF CLAIM CLAIM NO. ALLEGED AMOUNT OF ALLOWED AMOUNT OF
CLAIM CLAIM
- -------------------------------------------- ----------------- ----------------------- ---------------------------
- -------------------------------------------- ----------------- ----------------------- ---------------------------
Kline, John R 49674-000250 Unknown Disallowed
Kline, John R 49672-007829 Unknown Disallowed
Lubbers, Mark R 49672-007826 Unknown Disallowed
Lubbers, Mark R 49674-000246 Unknown Disallowed
Murphy, Daniel J 49674-000229 Unknown Disallowed
Murphy, Daniel J 49672-007830 Unknown Disallowed
Murphy, Daniel J 49674-000222 Unknown Disallowed
Mutz, John M 49674-000242 Unknown Disallowed
Mutz, John M 49672-007820 Unknown Disallowed
Nickoloff, Robert S 49672-007821 Unknown Disallowed
Nickoloff, Robert S 49674-000243 Unknown Disallowed
Shea, William J 49674-000223 Unknown Disallowed
Shea, William J 49672-007822 Unknown Disallowed
Shea, William J. 49674-000228 Unknown Disallowed
Thompson, Samme 49672-007835 Unknown Disallowed
Thompson, Samme 49674-000244 Unknown Disallowed
-------------------------------------------- ----------------- ----------------------- ---------------------------
Effects of Confirmation
Executory Contracts and Unexpired Leases
5. The executory contract and unexpired lease provisions of Article VI of
the Plan shall be, and hereby are, approved. After today's date, the Debtors are
authorized to amend the tax sharing agreement among the Debtors and their
subsidiaries as requested by the regulatory authorities for the Debtors'
subsidiaries. As of the Effective Date, all executory contracts or unexpired
leases assumed by the Debtors shall be assigned and transferred to, and remain
in full force and effect for the benefit of, the Reorganized Debtors
notwithstanding any provision in such contract or lease (including those
described in sections 365(b)(2) and (f) of the Bankruptcy Code) that prohibits
such assignment or transfer or that enables or requires termination of such
contract or lease. The Claims asserted on behalf of creditors whose executory
contracts are Assumed Contracts are listed on Exhibit B and shall be disallowed
as of today's date.
24
6. The Amended Employment Agreement, dated June 1, 2002, between CNC and
William J. Shea, is rejected as of the Effective Date and all Claims and Causes
of Action in respect thereof shall be deemed waived as of the Effective Date.
The Senior Management Employment Agreements in the Plan Supplement and CNC's
agreement with Charles H. Cremens regarding the sale of the GM Building shall
bind New CNC as of the Effective Date.
Existing Injunction and Stays Remain in Effect until Effective Date
7. The stay imposed by section 362 of the Bankruptcy Code shall remain in
full force and effect until the Effective Date. All injunctions or stays imposed
during the Chapter 11 Cases or contained in the Plan or this Confirmation Order
shall remain in full force and effect in accordance with their terms. Nothing
herein shall bar the taking of such other actions as are necessary to effectuate
the transactions specifically contemplated by the Plan or by this Confirmation
Order.
Plan Confirmation Shall Not Affect the Nauert Adversary Proceeding
8. Nothing in the Plan, the Plan Supplement or this Order shall have any
issue or claim preclusive effect on the rights, claims, counterclaims and
interests asserted by Peter W. Nauert in the adversary proceeding captioned
Peter W. Nauert v. CIHC, Inc. and U.S. Bank, N.A., Adv. No. 03 A 00452 (the
"Nauert Adversary Proceeding"), including, without limitation, the issue of
Plaintiff's Benefit Entitlement, as defined in the complaint filed in the Nauert
Adversary Proceeding. Nothing in the Plan, or this Order shall be construed to
enjoin the Nauert Adversary Proceeding. The Court shall retain jurisdiction over
the Nauert Adversary Proceeding and his proofs of claim. The Stipulation and
Agreed Order Regarding Peter W. Nauert's Motion for Preliminary Injunction Filed
Against CIHC, Inc. and U.S. Bank, N.A., entered by the Court on March 31, 2003,
regarding notice to Nauert and U.S. Bank of any withdrawal or transfer of monies
held in an account at U.S. Bank (Account #08524041) shall
25
remain in effect until a final order is entered in the Nauert Adversary
Proceeding, notwithstanding Confirmation of the Plan.
Exemption from Registration
9. Pursuant to section 1145 of the Bankruptcy Code, the offering, issuance
and distribution of the New Securities shall be exempt from, among other things,
the registration requirements of Section 5 of the Securities Act and any State
or local law requiring registration prior to the offering, issuance,
distribution or sale of securities. In addition, under section 1145 of the
Bankruptcy Code the New Securities (including, without limitation, the 462,444
shares of New CNC Common Stock distributed to Houlihan Lokey Howard & Zukin
under its engagement letter) will be freely tradeable by the recipients thereof,
subject to (i) the provisions of section 1145(b)(1) of the Bankruptcy Code
relating to the definition of an underwriter in Section 2(a)(11) of the
Securities Act, and compliance with any rules and regulations of the Securities
and Exchange Commission, if any, applicable at the time of any future transfer
of such securities or instruments; (ii) the restrictions, if any, on the
transferability of such securities and instruments; and (iii) applicable
regulatory approval.
Matters Relating to Implementation of the Plan
Immediate Effectiveness; Successors and Assigns
10. Notwithstanding Rules 3020(e), 6004(g) or 7062, or otherwise,
immediately upon the entry of this Confirmation Order, the terms of the Plan,
the Plan Supplement and this Order shall be, and hereby are, immediately
effective and enforceable and deemed binding upon the Debtors, the Reorganized
Debtors, any and all Holders of Claims or Equity Interests and the Trust
Preferred Securities (irrespective of whether such Claims or Equity Interests
are impaired under the Plan or whether the Holders of such Claims or Equity
Interests accepted or are deemed to have accepted the Plan), all entities that
are parties to or are subject to
26
the settlements, compromises, releases, discharges, and injunctions described in
the Plan or herein, each Person acquiring property under the Plan, and any and
all non-Debtor parties to executory contracts and unexpired leases with the
Debtors and the respective heirs, executors, administrators, successors or
assigns, affiliates, officers, directors, agents, representatives, attorneys,
beneficiaries, or guardians, if any, of any of the foregoing.
Continued Corporate Existence; Vesting of Assets
11. On the Effective Date, subject to applicable state insurance regulatory
approval: (a) 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; (b) each of the President, the Secretary and any
other officer of Old CNC is authorized to file such Amended and Restated
Articles of Incorporation with the Secretary of State of Indiana pursuant to
23-1-38-8 of the Indiana Business Corporation Law; (c) New CNC shall be
incorporated and shall exist thereafter as a separate corporate entity, 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 (d) (i) 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; (ii) 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; (iii) 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 (iv) Reorganized
PHG shall continue to exist as a separate
27
corporate entity, with corporate powers in accordance with the laws of the State
of Illinois and its existing charter and by-laws.
12. The Plan does not impair post-Effective Date (i) transfer and
assumption of certain assets and liabilities of CIHC to and by CDOC, Inc., a
non-debtor subsidiary of Conseco, Inc. and (ii) conversion of CIHC into a life
insurance company and (iii) the merger of Conseco Life Insurance Company of
Texas into CIHC, with CIHC being the surviving company, all subject to
applicable state insurance regulatory approval.
13. Except as otherwise contemplated by the Plan and the Plan Supplement
(including the New Credit Facility), on and after the Effective Date, all
property of each Debtor's Estate, and any property retained or acquired by such
Debtor, Reorganizing Debtor or Reorganized Debtor 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, and such transfer does not
constitute an avoidable transfer under the Bankruptcy Code or under applicable
non-Bankruptcy law, and does not and shall not subject the Debtors, Reorganizing
Debtors, or Reorganized Debtors to any liability by reason of such transfer
under the Bankruptcy Code or under applicable non-Bankruptcy law. As of the
Effective Date, all property of the Reorganized Debtors shall be free and clear
of all claims, encumbrances, Interests, charges, and liens except as
specifically provided in the Plan or this Order.
14. 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.
28
Cancellation of Old Notes, Old Preferred Stock, Old Common Stock and Stock
Options
15. On the Effective Date, except to the extent otherwise expressly
provided in the Plan, all notes, instruments, certificates, and other documents
evidencing the (a) Senior Credit Facility and the Guarantees of D&O Credit
Facilities; (b) Exchange Notes; (c) Original Notes; (d) Subordinated Debentures
and the related guarantees and the Trust Preferred Securities; (e) 93/94 Notes;
(f) Old CNC Common Stock; (g) Old CNC Preferred Stock; (h) any and all other
Claims and Equity Interests and (i) any rights, options, warrants, calls,
commitments, contractual, or otherwise, obligating the Debtors to issue,
transfer or sell any shares of Old CNC Common Stock or Old CNC Preferred Stock,
shall be canceled and the obligations of the Reorganizing Debtors or Reorganized
Debtors thereunder or in any way related thereto shall be discharged, 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 Plan Article V.K.5) owe under the D&O Credit Facilities and related
documents.
Issuance of New Securities and Execution of Related Documents
16. On or as soon as practicable after the Effective Date, the Reorganized
Debtors are hereby authorized, empowered, and directed, and shall distribute or
issue all securities, notes, instruments, certificates, and other documents
required to be issued pursuant to the Plan, including, without limitation; (a)
the New Credit Facility; (b) New CNC Common Stock; (c) New CNC Preferred Stock,
and (d) New CNC Warrants, each of which shall be distributed as provided herein
or in the Plan. The Reorganized Debtors and Old CNC shall execute and deliver
such other agreements, documents and instruments as are required to be executed
pursuant to the terms of the Plan. On the Effective Date, the New Credit
Facility and
29
all documents, instruments, certificates and other agreements ancillary thereto
to which any of the Lenders are a party, including the D&O Transfer Agreement,
will bind all Lenders, regardless of whether all Lenders voted to accept the
Plan or execute such documents.
17. Each distribution and issuance referred to in the prior paragraph shall
be governed by the terms and conditions set forth in the Plan applicable to such
distribution or issuance and by the terms and conditions of the instruments
evidencing or relating to such distribution or issuance, which terms and
conditions shall bind each Person receiving such distribution or issuance.
18. On the Effective Date, the Lenders under the D&O Credit Facilities
shall be deemed to have transferred to New CNC, and New CNC shall be deemed to
have succeeded to, all of the rights, title and interest of such Lenders in the
Transferred Property (as defined in the D&O Transfer Agreement), all as more
fully set forth in the D&O Transfer Agreement. The D&O Transfer Agreement is
binding for all purposes.
19. On the Effective Date, Reorganized CIHC shall be authorized to require
its direct and indirect subsidiaries to execute and deliver all such agreements,
documents and instruments as are required to transfer the Residual Subsidiaries,
as defined and described in the Residual Subsidiary Schedule in the Plan
Supplement, to Old CNC. Thereafter, Old CNC shall issue the Residual Share to
the Residual Trust.
20. 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 former and current members and ex officio members of
such committees (and each of their respective affiliates, agents, directors,
officers, employees, advisors, and attorneys) have, and are deemed to
30
have, participated in good faith and in compliance with the applicable
provisions of the Bankruptcy Code with regard to the solicitation of acceptances
or rejections of this Plan and the distributions 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.
Corporate Governance, Directors and Officers and Corporate Action
Amended Certificate of Incorporation and By-laws
21. 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.
Directors and Officers of the Reorganized Debtors
22. The officers of the Debtors immediately prior to the Effective Date
will be the officers of the Reorganized Debtors unless otherwise provided by
valid corporate action of any such Reorganized Debtor in accordance with
applicable law and the applicable constituent documents for such Reorganized
Debtor. The Senior Management Employment Agreements set forth at TAB J to the
Plan Supplement will be effective as of the Effective Date.
23. Subject to applicable state insurance regulatory approval, the Boards
of Directors of Old CNC, New CNC, Reorganized CIHC, Reorganized CTIHC and
Reorganized
31
PHG, on the Effective Date shall consist of the individuals specified in the
Plan Supplement and the terms of the current Boards of Directors for each such
entity shall expire and the members thereof shall be deemed to have resigned and
shall cease to serve in such capacity.
24. Pursuant to section 1129(a)(5)(A)(ii) of the Bankruptcy Code, subject
to applicable state insurance regulatory approval, the Court approves as
consistent with the interests of Creditors and Interest holders and with public
policy the selection, election, and/or continuance, as the case may be, of these
individuals; provided, however, that nothing set forth herein shall prevent any
of the foregoing individuals from resigning or from being removed or replaced as
an officer or director without further order of the Court. On the Effective
Dates, the operation of New CNC shall become the general responsibility of the
Board of Directors of New CNC, subject to, and in accordance with, the New CNC
Charter and New CNC By-laws.
Management Incentive Plan
25. On the Confirmation Date, New CNC will adopt the Management Incentive
Plan substantially in the form set forth in the Plan Supplement. On or after the
Effective Date, the compensation committee of the board of directors of New CNC
will make initial awards under the Management Incentive Plan, other than those
approved under the Senior Management Employment Agreements. Approval by the sole
shareholder of New CNC on or before the Confirmation Date and receipt of
sufficient votes to accept the Plan as reflected on the Voting Report shall be
deemed to constitute shareholder approval of the Management Incentive Plan for
all purposes.
Senior Management Employment Agreements
26. On the Effective Date, New CNC shall be bound by the Senior Management
Employment Agreements substantially in the form set forth in the Plan
32
Supplement, and the officers of New CNC shall be authorized and directed to
execute such Senior Management Employment Agreements.
Resolution of the Directors & Officers Stock Purchase Program for Certain
Participants
27. Amounts owed by the Participants under the D&O Credit Facilities shall
be treated in accordance with Article V.K.5 of the Plan. "Executive officers"
(as defined in the Sarbanes-Oxley Act) shall not be Participants as defined in
Article V.K.5 of the Plan.
Sources of Cash for Plan Distribution
28. 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.
Dismissal of TOPrS' Appeals
29. Within one business day of today's date, counsel for the TOPrS
Committee shall execute Exhibits F and G and deliver said executed documents to
counsel for the Debtors. After the Effective Date (as confirmed by the filing
with the Court of a Notice of Effective Date), counsel for the Debtors is
authorized to file said executed documents with the appropriate court.
Distributions
30. The distribution provisions of Article VII of the Plan shall be, and
hereby are, approved. The Reorganized Debtors shall make all distributions
required under the Plan. The Distribution Record Date shall be the close of
business on the date hereof for the following Classes: Class 5A-1, Class 5A-2,
Class 4B-1 and Class 4B-2 (Lender Claims), Class 6A and Class 5B (Exchange Note
Claims), Class 7A (Original Note Claims) and Class 10A (Trust
33
Related Claims). The Distribution Record Date shall remain May 30, 2003 for all
other claims, as previously established by Order entered May 20, 2003 (Docket
#3290).
31. If a claimant appeals disallowance of a claim pursuant to a lower
court's order, but fails to obtain a stay of the lower court's order, then the
Reorganized Debtors shall not consider such claim when calculating the New CNC
Common Stock Holdback.
32. As of the close of business on today's date, the transfer registers for
the Lender Claims, the Exchange Notes, the Original Notes and the Trust
Preferred Securities shall be closed and there shall be no further changes in
the record Holders of any Lender Claim, Exchange Note, Original Note or Trust
Preferred Securities. Moreover, the Reorganized Debtors shall have no obligation
to recognize the transfer of any Lender Claim, Exchange Note, Original Note or
Trust Preferred Securities after today's date, and the Reorganized Debtors shall
be entitled for all purposes to recognize and deal only with those Holders of
record as of the close of business on today's date.
33. The Reorganized Debtors shall distribute the TOPrS Settlement to
holders of Trust Preferred Securities who have not timely opted out of the TOPrS
Settlement. Such distributions will be made to the Depository Trust Company, who
shall (a) transfer such distributions to its nominee Cede & Co. and (b) take
reasonable steps to ensure that such distributions are transferred to the
participant accounts of the record holders of the Trust Preferred Securities who
have not timely opted out of the TOPrS Settlement. Because the TOPrS Settlement
D&O Litigation Recovery is not transferable, Depository Trust Company shall
maintain the record holders of Trust Preferred Securities as of today's close of
business to enable future distributions of the TOPrS Settlement D&O Litigation
Recovery. The TOPrS
34
Settlement Equity Recovery and the New CNC Warrants constitute New Securities
and are transferable as otherwise specified in this Order.
34. Except as otherwise provided by the Plan or this Confirmation Order,
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.
35. 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.
36. The Debtors or Reorganized Debtors, as the case may be, are authorized
and empowered to retain, without further order of the Court, and shall have the
authority, in their sole discretion, to enter into agreement with one or more
Distribution Agents, to facilitate the solicitation of votes on the Reorganizing
Subplans and the distributions required under the Reorganizing Subplans, as set
forth in Section VII.B of the Plan.
Preservation of All Causes of Action Not Expressly Settled or Released
37. 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
35
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.
Prosecution of Objections to Claims
38. After the Effective Date, the Reorganized Debtors (for Claims against
the Reorganized Debtors) shall have the exclusive authority to file objections,
settle, compromise, withdraw or litigate to judgment objections to Claims or
Equity Interests.
39. The Conseco Creditors' Committee shall remain in existence after the
Effective Date solely for the purpose of concluding their litigation with the
Securities Plaintiffs (Anchorage Police & Fire Retirement System and the State
of Louisiana Firefighters Retirement System, as lead plaintiffs and class
representatives for the class of plaintiffs in In re Conseco, Inc. Securities
Litigation, IP-0585-C Y/S (appointed on May 28, 2002)) including, but not
limited to, the appeal of this Court's Order dated August 20, 2003, filed on
August 29, 2003, and any post-appeal related proceedings.
Corporate Action
40. On the Effective Date (or on the Confirmation Date with respect to any
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, the
effectiveness of the Senior Management Employment Agreements (including the
grant of equity awards thereunder) and all actions
36
contemplated hereby shall be authorized and approved in all respects (subject to
the provisions hereof) pursuant to the Plan, subject to applicable state
insurance regulatory approval. All matters provided for herein involving the
corporate structure of the Debtors, 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, subject to applicable state insurance regulatory approval.
On or before the Effective Date, the appropriate officers of the Debtors,
Reorganizing Debtors and Reorganized Debtors are authorized and directed to (a)
issue, execute, deliver and implement the agreements, documents, securities and
instruments contemplated by the Plan, including, but not limited to, the New
Credit Facility and the New Securities, and (b) issue, execute, deliver, file,
and record any documents, court papers, or pleadings, and take any and all
actions as may be necessary or desirable to implement, effect, or consummate the
transactions contemplated by the Plan, whether or not specifically referred to
in the Plan or related documents and without further application to or order of
the Court, in the name of and on behalf of the Debtors, Reorganizing Debtors
and/or Reorganized Debtors, without the need for any shareholder's or director's
approval, or any other authorizations or consents, except for express consents
under the Plan, subject to applicable state insurance regulatory approval.
Release and Exculpation Provisions
41. The compromises and settlements contemplated by Art. X.A of the Plan
are hereby approved.
42. The releases in Art. X.A of the Plan by all Persons and Entities of
such contractual, legal and equitable subordination rights or Causes of Action,
claims or
37
counterclaims against such Holder satisfied, compromised and settled in this
manner are approved.
43. The Release Provisions of Art. X.B and X.C of the Plan and the
Exculpation Provision of Art. X.D of the Plan are hereby approved in their
entirety. In particular, and without limitation, Article X.D. of the Plan
applies to all parties involved in negotiating the TOPrS Settlement, including
the option for holders of the Trust Preferred Securities to opt-out of the TOPrS
Settlement if they choose to not accept it.
44. All Consenting Parties have consented to the releases set forth in Art.
X.C of the Plan (Release by Holders of Claims) and therefore are bound by such
releases.
Discharge and Injunction Provisions
45. Pursuant to Art. X.F of the Plan, and except as otherwise provided
herein or in the Plan or in any other Order entered in these cases:
(i) the rights afforded in the Plan and the treatment of all Claims
and Equity Interests in the Plan, 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 after the Petition Date to and including the
Confirmation Date, against the Reorganizing or Reorganized
Debtors or any of their assets or properties;
(ii) 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
(iii) all Persons shall be permanently enjoined from
(a) Asserting against the Reorganizing or Reorganized Debtors,
their successors or their assets or properties such Claims
or Equity Interests based upon any act or omission,
transaction or other activity of any kind or nature that
occurred on or prior to the Confirmation Date.
(b) Creating, perfecting, or enforcing any encumbrance of any
kind premised on such Claim or Equity Interest
38
against any Reorganizing Debtor or the property or estate of
any Reorganizing Debtor or Reorganized Debtor;
(c) Asserting any right of setoff, subrogation or recoupment of
any kind against any obligation due from any Reorganizing
Debtor or Reorganized Debtor or against the property or
estate of any Reorganizing Debtor or Reorganized Debtor with
respect to any such Claim or Equity Interest.
Consummation
46. The substantial consummation of the Plan, within the meaning of section
1127 of the Bankruptcy Code, shall be, and hereby is, deemed to mean the
occurrence of the Effective Date.
47. The consummation of the Plan shall not constitute a change of ownership
or change in control, as such terms are used in any employment, severance or
termination agreement in effect on the Effective Date and to which either of the
Debtors is a party or under any applicable law of any applicable Governmental
Unit.
Failure to Consummate the Plan
48. In accordance with Article IX.D of the Plan, if consummation of the
Plan 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 any Claim or Interest or Class of Claims or Interests),
assumption or rejection of executory contracts or leases effected by the Plan,
and any document or agreement executed pursuant to the Plan shall be deemed null
and void, and (c) nothing contained in the Plan, and no acts taken in
preparation for consummation of the Plan, shall (i) constitute or be deemed to
constitute a waiver or release of any Claims by or against, or any Interests in,
the Debtors or any other Person; (ii) prejudice in any manner the rights of the
Debtors or any Person in any further proceedings involving the Debtors; or (iii)
constitute an admission of any sort by the Debtors or any other Person.
39
Retention of Jurisdiction
49. Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, and
sections 157 and 1334 of title 28 of the United States Code, notwithstanding the
entry of the Confirmation Order and the occurrence of the Effective Date, the
Bankruptcy Court shall retain such exclusive jurisdiction over all matters
arising out of or related to the Chapter 11 Cases and the Plan after the
Effective Date, as legally permissible, including jurisdiction to:
(ii) 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;
(iii) 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; provided, however, that final fee
applications must be filed on or before 30 days after the date
of this Order, and that such fee applications need only cover
the period from the Petition Date to the Confirmation Date;
(iv) 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 of the Plan to add any executory
contracts or unexpired leases to the list of executory
contracts and unexpired leases to be rejected;
(v) ensure that distributions to Holders of Allowed Claims and
Allowed Equity Interests are accomplished pursuant to the
provisions hereof;
(vi) 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;
(vii) 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;
40
(viii) 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;
(ix) 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;
(x) resolve any cases, controversies, suits or disputes with
respect to the releases, injunction and other provisions
contained in Article X of the Plan and enter such orders as may
be necessary or appropriate to implement such releases,
injunction and other provisions;
(xi) enter and implement such orders as are necessary or appropriate
if the Confirmation Order is for any reason modified, stayed,
reversed, revoked or vacated;
(xii) 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
(xiii) enter an order and/or final decree concluding the Chapter 11
Cases.
Notwithstanding any provision of this Order that may read to the contrary,
nothing in this Order is intended to preempt or usurp the jurisdiction of state
insurance regulators from the exercise of their applicable authority over the
Reorganized Debtors.
Payment of Statutory Fees
50. All fees payable pursuant to 28 U.S.C. ss. 1930(a), 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) for each
Debtor until such Debtor's Chapter 11 Case is converted, dismissed or closed,
whichever occurs first.
Exemption from Stamp Taxes
51. Pursuant to section 1146(c) of the Bankruptcy Code: (a) the issuance,
distribution, transfer or exchange of any debt, equity security or other
interest of the Debtors or Reorganized Debtors; (b) the creation, modification,
consolidation or recording of any mortgage,
41
deed of trust or other security interest, the securing of additional
indebtedness by such or other means; (c) the making, assignment or recording of
any lease or sublease, or (d) the making, delivery or recording of any deed or
other instrument of transfer under, in furtherance of, or in connection with,
the Plan, including any deeds, bills of sale, assignments or other instruments
of transfer executed in connection with any transactions arising out of,
contemplated by or in any way related to the Plan or this Confirmation Order,
shall not be subject to any document recording tax, stamp tax, conveyance fee,
intangibles or similar tax, mortgage tax, transfer tax, mortgage recording tax
or other similar tax or governmental assessment, and the appropriate State or
local government officials or agents shall be, and hereby are, directed to
forego the collection of any such tax or governmental assessment and to accept
for filing and recordation any of the foregoing instruments or other documents
without the payment of any such tax or governmental assessment. The Court
specifically retains jurisdiction to enforce the foregoing direction, by
contempt or otherwise. Exhibit C shall have the effect of an order of the Court,
shall constitute sufficient notice of the entry of this Order to such filing and
recording officers, and shall be a recordable instrument notwithstanding any
contrary provision of applicable non-bankruptcy law.
References to Plan Provisions
52. The failure specifically to include or to refer to any particular
provision of the Plan in this Order shall not diminish or impair the
effectiveness of such provision, it being the intent of the Court that the Plan
be confirmed in its entirety.
Post-Confirmation Notices and Bar Dates
Notice of Entry of the Confirmation Order
53. In accordance with Fed. R. Bankr. P. 2002 and 3020(c), within five
business days of the date of entry of this Confirmation Order, the Reorganized
Debtors (or their
42
agents) shall give notice of the entry of this Order, in substantially the form
of Exhibit C annexed hereto (the "Notice of Confirmation") by United States
mail, first class postage prepaid, by hand, or by overnight courier service to
all parties having been served with the Confirmation Hearing Notice; provided,
however, that no notice or service of any kind shall be required to be mailed or
made upon any person to whom the Debtors mailed a Confirmation Hearing Notice,
but received such notice returned marked "undeliverable as addressed," "moved,
left no forwarding address" or "forwarding order expired," or similar reason,
unless the Debtors have been informed in writing by such person, or are
otherwise aware, of that person's new address. To supplement the notice
described in the preceding sentence, within fifteen days of the date of this
Order the Debtors shall publish Notice of Confirmation once each in The Wall
Street Journal, USA Today, the Chicago Tribune and the Indianapolis Star.
54. Mailing and publication of the Notice of Confirmation in the time and
manner set forth in the preceding paragraph are good and sufficient under the
particular circumstances and in accordance with the requirements of Fed. R.
Bankr. P. 2002 and 3020(c), and no further notice is necessary.
Bar Date for Requests for Administrative Claims
55. All requests for administrative expenses pursuant to section 503 of the
Bankruptcy Code must be filed within thirty (30) days of the date of this Order
with the Bankruptcy Management Corporation.
Final Fee Applications
56. Any professional seeking an allowance, pursuant to sections 327, 328,
330, 331, 503(b), 507(a)(1) and/or 1103 of the Bankruptcy Code, of (i) an
Administrative Claim or (ii) final compensation or reimbursement of expenses
incurred on or before the Confirmation Date for professional services rendered
to the Reorganizing Debtors or in relation to these cases
43
("Professional Fees and Expenses") shall file and serve an application for
allowance of such Administrative Claim or Professional Fees and Expenses (each,
an "Application"), on each of the following entities not later than thirty (30)
days after the Confirmation Date:
- ------------------------------------------------------------ ---------------------------------------------------------
Counsel to the Debtors The Office of the United States Trustee
Kirkland & Ellis LLP 227 West Monroe St.
200 East Randolph Drive Suite 3350
Chicago, Illinois 60601 Chicago, IL 60606
Attn: Anne Marrs Huber, Esq. Attn: Richard Friedman, Esq. and
and Roger Higgins, Esq. Gretchen Silver, Esq.
- ------------------------------------------------------------ ---------------------------------------------------------
- ------------------------------------------------------------ ---------------------------------------------------------
Counsel to the Unsecured Creditors' Committee Counsel for the Official Committee
Fried, Frank, Harris, Shriver & Jacobson of Trust Preferred Debt Holders
One New York Plaza Jenner & Block, LLC
New York, NY 10004 One IBM Plaza
Attn: Brad Eric Scheler, Esq. And Chicago, Illinois 60611
Vivek Melwani, Esq. Attn: Daniel R. Murray, Esq. And
Catherine Steege, Esq.
and and
Mayer Brown Rowe & Maw Saul Ewing LLP
190 South La Salle Street 100 South Charles Street, 15th Floor
Chicago, Illinois 60603-3441 Baltimore, Maryland 21201
Attn: Thomas S. Kiriakos, Esq. Attn: Irving E. Walker, Esq.
- ------------------------------------------------------------ ---------------------------------------------------------
57. Each Application shall comply with the applicable provisions of the
Bankruptcy Code, the Bankruptcy Rules and the Local Bankruptcy Rules, and shall
set forth, among other things, in reasonable detail; (i) the name and address of
the applicant; (ii) the nature of the Professional Fees and Expenses for which
reimbursement is requested for all periods from the date the particular
applicant was retained through the Confirmation Date; (iii) the amount of the
Professional Fees and Expenses requested; (iv) the amounts of Professional Fees
and Expenses previously allowed by the Court, if any; and (v) the amount or
amounts of payments made to date, if any, by the Debtors to reduce such allowed
amount.
44
58. No applications need be filed for compensation and reimbursement by a
professional person for services rendered or expenses incurred on or after the
Confirmation Date, and such compensation and reimbursement may be paid by the
Reorganized Debtors in accordance with ordinary business practices and without
order of the Court.
Captions
59. On the Confirmation Date, the Reorganizing Debtors shall use the
caption with respect to the Reorganizing Debtors' cases, in the form of Exhibit
D annexed hereto. On the Confirmation Date, the Finance Company Debtors shall
use the caption with respect to the Finance Company Debtors' cases in the form
annexed hereto as Exhibit E.
Non-Material Changes
60. Without limiting the generality of the foregoing, and without the need
for a further order or authorization of this Court, the Debtors, with the prior
written consent of the Conseco Creditors Committee, shall be authorized and
empowered to make non-material modifications to the exhibits comprising the Plan
Supplement as in their reasonable business judgment may be necessary.
Authorization to Consummate
61. The Debtors are authorized to consummate the Plan at any time after the
entry of this Order subject to satisfaction or waiver of the conditions
precedent to Consummation set forth in Article IX.B of the Plan.
Final Order
62. This Order is a final order and the period in which an appeal must be
filed shall commence upon the entry hereof.
45
Miscellaneous
63. Paragraph 39 of this Order shall not limit the provisions of Plan
Article XII.C.
64. Notwithstanding Article XII.C of the Plan, the Committee appointed on
August 20, 2003 to represent a certain class asserting claims under Section 1114
"for the purpose of assisting class members in determining how and when cure
amounts should be . . . resolved-as well as the specific cure amounts of the
individual class members" (August 20, 2003 transcript at page 16) shall remain
in existence after the Effective Date for the purposes specified by the Court.
IT IS SO ORDERED.
Chicago, Illinois
Dated: September 9, 2003 /s/
------------------------------------
Honorable Carol A. Doyle
United States Bankruptcy Judge
46