<PAGE>
Exhibit 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
_____________________________________
:
In Re: :
:
CREDITRUST CORPORATION : Case No. 00-5-7812-JS
: Chapter 11
Debtor-in-Possession :
____________________________________:
CREDITRUST CORPORATION'S FIFTH AMENDED
--------------------------------------
PLAN OF REORGANIZATION
----------------------
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
Roger Frankel
Michael J. Lichtenstein
Jonathan P. Guy
SWIDLER BERLIN SHEREFF
FRIEDMAN, LLP
3000 K Street, N.W., Suite 300
Washington, D.C. 20007
Telephone: (202) 424-7500
Attorneys for the Debtor-in-Possession
December 21, 2000
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TABLE OF CONTENTS
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ARTICLE I - DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME AND GOVERNING LAW............................ 1
1.1 DEFINED TERMS..................................................................................... 1
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1.2 RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW................................... 11
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ARTICLE II - TREATMENT OF ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS.............................................. 12
2.1 ADMINISTRATIVE CLAIMS............................................................................. 12
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ARTICLE III - SUMMARY OF CLASSIFICATION, TREATMENT, AND VOTING RIGHTS OF CLAIMS AND EQUITY INTERESTS................. 13
ARTICLE IV - CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS............................................. 14
4.1 CLASS 1 - PRIORITY CLAIMS......................................................................... 14
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4.2 CLASS 2 - SUNROCK SECURED CLAIM AND SUNROCK DIP CLAIM............................................. 15
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4.3 CLASSES 3(i) - 3(x) - FF&E SECURED CLAIMS......................................................... 15
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4.4 CLASS 4 - UNSECURED CLAIMS........................................................................ 17
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4.5 CLASS 5 - RENSIN NOTE CLAIM....................................................................... 18
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4.6 CLASS 6 - SPV99-2 NOTEHOLDERS CLAIMS.............................................................. 18
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4.7 CLASS 7 - AGI..................................................................................... 20
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4.8 CLASS 8 - FDCPA CLAIMS............................................................................ 20
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4.9 CLASS 9 - INDEMNIFICATION CLAIMS.................................................................. 21
--------------------------------
4.10 CLASS 10 - ADMINISTRATIVE CONVENIENCE CLAIM....................................................... 21
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4.11 CLASS 11- EQUITY INTERESTS........................................................................ 21
--------------------------
4.12 SPECIAL PROVISION GOVERNING UNIMPAIRED CLAIMS..................................................... 22
---------------------------------------------
4.13 SPECIAL ADJUSTMENT................................................................................ 23
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ARTICLE V - IMPLEMENTATION OF THE PLAN............................................................................... 23
5.1 VESTING OF ASSETS IN REORGANIZED CREDITRUST....................................................... 23
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5.2 MODIFICATION OF SECURITY AGREEMENTS............................................................... 24
-----------------------------------
5.3 ISSUANCE OF NEW SECURITIES; EXECUTION OF RELATED DOCUMENTS........................................ 24
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5.4 CORPORATE GOVERNANCE, DIRECTORS AND OFFICERS, AND CORPORATE ACTION................................ 24
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5.5 INTENTIONALLY DELETED............................................................................. 25
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5.6 SERVICING AGREEMENT............................................................................... 25
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5.7 LITIGATION TRUST.................................................................................. 25
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ARTICLE VI - METHOD OF DISTRIBUTIONS UNDER THE PLAN.................................................................. 25
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6.1 IN GENERAL.......................................................................... 25
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6.2 DISTRIBUTIONS OF CASH............................................................... 26
----------------------
6.3 TIMING OF DISTRIBUTIONS............................................................. 26
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6.4 UNCLAIMED DISTRIBUTIONS............................................................. 26
-------------------------
6.5 DISTRIBUTIONS MADE ONLY TO RECORD HOLDERS........................................... 27
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ARTICLE VII - PROCEDURES FOR THE TREATMENT OF DISPUTED CLAIMS.......................................... 27
7.1 DISALLOWANCE OF LATE CLAIMS......................................................... 27
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7.2 PROSECUTION OF OBJECTIONS TO CLAIMS................................................. 28
-----------------------------------
7.3 NO DISTRIBUTIONS PENDING ALLOWANCE.................................................. 28
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7.4 DISTRIBUTIONS AFTER ALLOWANCE....................................................... 28
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ARTICLE VIII - EXECUTORY CONTRACTS AND UNEXPIRED LEASES................................................ 28
8.1 ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES................. 28
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8.2 APPROVAL OF ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES..... 29
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8.3 CURE OF DEFAULTS.................................................................... 29
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8.4 BAR DATE FOR FILING PROOFS OF CLAIM RELATING TO ANY REJECTED EXECUTORY CONTRACTS AND
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UNEXPIRED LEASES.................................................................... 29
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8.5 INSURANCE POLICIES.................................................................. 30
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8.6 INDEMNIFICATION OBLIGATIONS......................................................... 30
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8.7 COMPENSATION AND BENEFIT PROGRAMS................................................... 30
---------------------------------
ARTICLE IX - RELEASES, WAIVERS AND EXCULPATION......................................................... 31
9.1 RELEASE BY REORGANIZED CREDITRUST................................................... 31
---------------------------------
9.2 RELEASES BY HOLDERS OF CLAIMS AND EQUITY INTERESTS AND FORMER EQUITY INTERESTS...... 31
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9.3 MUTUAL RELEASES..................................................................... 32
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9.4 NO LIABILITY FOR SOLICITATION OR PARTICIPATION...................................... 32
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9.5 BINDING EFFECT OF RELEASES.......................................................... 33
--------------------------
ARTICLE X - CONDITIONS TO CONFIRMATION AND EFFECTIVENESS OF THE PLAN................................... 33
10.1 CONSUMMATION OF THE PLAN............................................................ 33
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10.2 CONDITIONS TO THE EFFECTIVE DATE OF THE PLAN........................................ 33
--------------------------------------------
10.3 EFFECT OF FAILURE OF CONDITIONS..................................................... 34
-------------------------------
10.4 WAIVER OF CONDITIONS................................................................ 34
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ARTICLE XI - EFFECT OF CONFIRMATION OF PLAN............................................................ 35
11.1 TERM OF BANKRUPTCY INJUNCTION OR STAYS.............................................. 35
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11.2 REVESTING OF ASSETS................................................................. 35
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11.3 DISCHARGE OF DEBTOR................................................................. 35
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11.4 PERMANENT INJUNCTION................................................................ 35
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11.5 SETOFFS................................................................................ 36
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11.6 SECTION 346 INJUNCTION................................................................. 36
----------------------
11.7 COMPLIANCE WITH TAX REQUIREMENTS....................................................... 36
--------------------------------
ARTICLE XII - RETENTION OF JURISDICTION................................................................... 37
12.1 JURISDICTION........................................................................... 37
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ARTICLE XIII - MISCELLANEOUS PROVISIONS................................................................... 38
13.1 EXEMPTION FROM TRANSFER TAXES.......................................................... 38
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13.2 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS........................................ 38
-----------------------------------
13.3 TERMINATION OF OFFICIAL COMMITTEE...................................................... 38
---------------------------------
13.4 AMENDMENT OR MODIFICATION OF THE PLAN.................................................. 39
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13.5 REVOCATION OR WITHDRAWAL OF THE PLAN................................................... 39
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13.6 BINDING EFFECT......................................................................... 39
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13.7 NO ADMISSION........................................................................... 39
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13.8 NOTICES................................................................................ 39
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13.9 GOVERNING LAW.......................................................................... 40
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13.10 WITHHOLDING AND REPORTING REQUIREMENTS................................................. 40
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13.11 PLAN SUPPLEMENT........................................................................ 41
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13.12 HEADINGS............................................................................... 41
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13.13 EXHIBITS AND SCHEDULES................................................................. 41
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INDEX OF EXHIBITS AND SCHEDULE
SCHEDULE
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Schedule A...............Executory Contracts and Unexpired Leases to be Assumed
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CREDITRUST CORPORATION'S PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
---------------------------------------
Creditrust Corporation hereby proposes the following plan of reorganization
pursuant to Chapter 11 of the Bankruptcy Code.
ARTICLE 1 - DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME AND GOVERNING LAW
1.1 DEFINED TERMS.
-------------
Unless the context otherwise requires, the following terms shall have the
meanings indicated when used in capitalized form in the Plan:
Administrative Claim means any right to payment constituting a cost or
expense of administration of the Chapter 11 Case under
sections 503(b) and 507(a)(1) of the Bankruptcy Code,
including, without limitation, (i) any actual and
necessary costs and expenses of preserving the estate
of the Debtor-in-Possession, or of operating the
business of the Debtor-in-Possession, (ii) any
indebtedness or obligations incurred or assumed by the
Debtor-in-Possession in connection with the conduct of
its business, and (iii) all compensation and
reimbursement of expenses to the extent Allowed by the
Bankruptcy Court under section 330 or 503(b) of the
Bankruptcy Code (iv) any fees or charges assessed
against the estate of the Debtor under 28 U.S.C. (S)
1930 and (v) all amounts necessary to cure any defaults
under any executory contracts which are assumed in
accordance with the terms of Article VIII.
Administrative Claim shall exclude any claim for
indemnification, reimbursement or contribution asserted
by any Person arising from or relating to any actions
or inactions on the part of the Debtor, its officers or
directors which occurred prior to the Petition Date.
Administrative
Convenience Claims means an Unsecured Claim in an amount of $13,000 or
less, or such Claim that is voluntarily reduced to
$13,000 by the holder thereof.
AGI means Asset Guaranty Insurance Company
<PAGE>
AGI Settlement Agreement means that certain Settlement Agreement between AGI,
EFS, Debtor and other parties designated therein which
provides for the compromise of all claims between the
parties, a copy of which is attached to the Disclosure
Statement, and as it shall be amended by the parties
thereto to be consistent with the ruling of the
Bankruptcy Court of November 28, 2000.
Allowed means, with respect to any Claim, except as otherwise
provided herein: (a) a Claim that has been scheduled
by the Debtor in its schedule of liabilities as other
than disputed, contingent or unliquidated and as to
which the Debtor or other party in interest has not
filed an objection by the Effective Date; (b) a Claim
that either is not a Disputed Claim or has been
allowed by a Final Order; (c) a Claim that is allowed:
(i) in any stipulation with the Debtor of amount and
nature of Claim executed prior to the Confirmation
Date and approved by the Bankruptcy Court; (ii) in any
stipulation with the Debtor of amount and nature of
Claim executed on or after the Effective Date; or
(iii) in any contract, instrument, indenture or other
agreement entered into in connection with the Plan;
(d) a Claim relating to a rejected executory contract
or unexpired lease that either (i) is not a Disputed
Claim or (ii) has been allowed by a Final Order, in
either case only if a proof of Claim has been filed by
the Bar Date or has otherwise been deemed timely filed
under applicable law, or (e) a Claim that is allowed
pursuant to the terms of this Plan.
Allowed Claim means an Allowed Claim in the particular class as
described.
Amended Sunrock
Credit Agreement means that certain Credit Agreement dated October 28,
1998, as amended, among Creditrust, together with all
related instruments and documents, as each may have
been amended and modified from time to time.
Available Unsecured Cash shall mean $10,520,786 less Allowed Priority Tax
Claims, Allowed Special Administrative Claims (net of
fee escrows held by any Bankruptcy Professionals and
the amount for Touchstone and Worldwide capped at
$300,000 regardless of the amount allowed by the
Court), Allowed Class 10 Claims and any reserves
created under Section 4.8.
Avoidance Action means all rights, remedies, claims or causes of action
against all Persons, whether at law or at equity, of
or on behalf of the Debtor-in-Possession and/or the
Bankruptcy Estate (and/or any Person acting on
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their behalf) arising under sections 544, 545, 546,
547, 548, 549, 550, 553, or 558 of the Bankruptcy Code,
or any other similar state or federal law.
Ballot means the Ballot distributed with the approved
Disclosure Statement to those Persons entitled to vote
for or against the Plan.
Bankruptcy Code means the Bankruptcy Reform Act of 1978, as amended
from time to time.
Bankruptcy Court means the United States Bankruptcy Court for the
District of Maryland having jurisdiction over the
Chapter 11 Case.
Bankruptcy Estate means the estate of the Debtor pursuant to section 541
of the Bankruptcy Code.
Bankruptcy Professional means any Person (a) employed pursuant to an order of
the Bankruptcy Court in accordance with sections 327 or
1103 of the Bankruptcy Code and to be compensated for
services pursuant to sections 327, 328, 329, 330 and
331 of the Bankruptcy Code, or (b) for which
compensation and reimbursement is being sought or has
been allowed by the Bankruptcy Court pursuant to
section 503(b) of the Bankruptcy Code.
Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure,
promulgated under 28 U.S.C. 2075, and any applicable
local rules of the Bankruptcy Court.
Bar Date means October 24, 2000, the deadline for the filing of
proofs of Claims or Equity Interests established by
order of the Bankruptcy Court.
Barrist Contribution shall mean that certain commitment by Michael J.
Barrist to purchase $2,000,000 of New Common Stock on
the Effective Date based on the New Equity Value. This
commitment may be satisfied by the purchase of New
Common Stock by a nominee of Michael J. Barrist.
Business Day means any day other than a Saturday, Sunday or any
"legal holiday" (as defined in Bankruptcy Rule
9006(a)).
Call Center means all of the assets located at 1705 Whitehead Road,
Baltimore, Maryland.
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Capital Leases means those certain FF&E Agreements which are secured
financings under Maryland law.
Cash means any legal tender of the United States of America
and equivalents thereof.
Causes of Action means all rights, remedies, claims or causes of action,
whether actions at law or at equity, which may be
brought by or on behalf of the Debtor-in-Possession
and/or the Bankruptcy Estate arising under any
provision of the Bankruptcy Code or other applicable
law, including, but not limited to, any Avoidance
Action.
Chapter 11 Case means the case under Chapter 11 of the Bankruptcy Code
commenced by Creditrust, styled In re Creditrust
Corporation on the Petition Date and continuing through
the Confirmation Date.
Claim has the meaning set forth in section 101(5) of the
Bankruptcy Code provided and to the extent that such
Claim is not subject to disallowance or expungement
under section 502 of the Bankruptcy Code. Claim shall
also include any claim for indemnification (under the
certificate of incorporation or by-laws, applicable
state law or any specific agreement, or any combination
of the foregoing) arising from any act or omission
which has occurred prior to the Petition Date or any
Claim arising under Section 510(b).
Claimant means a person holding a Claim against Creditrust.
Class means a category of holders of Claims or Equity
Interests as set forth in the Plan.
Collateral means any property or interest in property of the
Bankruptcy Estate as of the Confirmation Date that is
subject to a Lien to secure the payment or performance
of a Claim, which Lien is not subject to avoidance
under the Bankruptcy Code or otherwise invalid under
the Bankruptcy Code or applicable state law.
Confirmation Date means the date on which the Confirmation Order is
entered by the Bankruptcy Court in its docket, within
the meaning of Bankruptcy Rules 5003 and 9021.
Confirmation Hearing means the hearing held by the Bankruptcy Court to
consider confirmation of the Plan pursuant to section
1129 of the Bankruptcy Code, as such hearing may be
adjourned or continued from time to time.
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Confirmation Order means a non-appealable Final Order of the Bankruptcy
Court confirming the Plan pursuant to section 1129 of
the Bankruptcy Code.
Creditors' Committee means the Official Committee of Unsecured Creditors.
Debtor means Creditrust Corporation, a Maryland corporation as
debtor-in-possession.
DIP Facility means the $5,000,000 credit facility provided to the
Debtor by Sunrock pursuant section 364 of the
Bankruptcy Code, together with documents, instruments,
agreements, and orders of the Bankruptcy Court
authorizing and governing such facility.
DIP Facility Lender means Sunrock, its successors, assigns thereunder, or
such other lenders as may be approved by the Bankruptcy
Court to provide the DIP Facility.
Disclosure Statement means the Disclosure Statement, as it may be amended
from time to time, filed with the Bankruptcy Court in
connection with the Plan pursuant to section 1125 of
the Bankruptcy Code.
Disputed means with reference to any Claim or Equity Interest,
any Claim or Equity Interest proof of which was timely
and properly filed and which has been or hereafter is
listed on the Schedules as unliquidated, disputed or
contingent, and in either case or in the case of an
Administrative Claim, any Administrative Claim, Claim
or Equity Interest which is disputed under the Plan or
as to which the Debtor-in-Possession has interposed a
timely objection and/or request for estimation in
accordance with section 502(c) of the Bankruptcy Code
and/or Bankruptcy Rule 3018, which objection and/or
request for estimation has not been withdrawn or
determined by a Final Order.
Distributable Cash means the maximum amount of Cash that may be
distributed on the Effective Date to holders of Allowed
Class 4 Claims determined by multiplying the amount of
Available Unsecured Cash by a fraction, the numerator
of which is the Allowed Class 4 Claims and the
denominator of which is the sum of Allowed Class 4
Claims plus disputed Class 4 Claims.
Distributable Stock means the maximum amount of New Common Stock that may
be distributed on the Effective Date to holders of
Allowed Class 11
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Interests based on (i) New Common Stock to be retained
by NCOG, Class 6, or in connection with the Barrist
Contribution and Rensin Contribution, (ii) the maximum
NCOP Unsecured Obligations as determined on the
Effective Date and the Special Adjustment under Section
4.13 of the Plan, and (iii) New Common Stock to be
issued under 4.2(c)(ii)(B), 4.4(c)(ii)(C) and any other
administrative claimant.
Effective Date means the first Business Day at least 20 days after the
Confirmation Date and at least one Business Day after
all of the conditions specified in Section 10.2 of the
Plan have been satisfied or waived in accordance with
the terms of the Plan.
EFS means Enhance Financial Services Group, Inc.
EFS Litigation means the litigation pending in the United States
District Court for the District of Maryland captioned:
Creditrust and Joseph K. Rensin vs. EFS et al. Case No.
----------------------------------------------
WMN00966.
Equity Interest means any equity interest of Creditrust, including, but
not limited to, all issued, unissued, authorized or
outstanding shares or stock, together with any
warrants, options, or contract rights to purchase or
acquire such interests at any time.
Estimated Claims means Claims that are the subject of an Order of the
Bankruptcy Court under 11 U.S.C. (S) 502(c).
Executory Contracts means all contracts to which the Debtor-in-Possession
is a party and which are executory within the meaning
of section 365 of the Bankruptcy Code, including
unexpired leases.
Exit Facility means that certain $50,000,000.00 secured credit
facility to be provided to Reorganized Creditrust
pursuant to the terms of the Exit Facility Commitment
such facility may, in its discretion, be provided by
NCOG.
Exit Facility
Commitment means that certain commitment letter by and between the
NCOG and the Exit Facility Lender, dated December 15,
2000.
Exit Facility Lender means lenders, reasonably satisfactory to the Debtor
and NCOG, that are parties to the Exit Facility
Commitment. Exit Facility Lender may, in its
discretion, be designated as NCOG.
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FDCPA Claim means Claims against Creditrust pursuant to the Federal
Fair Debt Collection Practices Act or any similar state
or local laws.
FF&E Agreements means the agreements, including Capital Leases, on
which the Claims in Classes 3(i)-(x) are based.
FF&E Secured Claim means a Claim arising from an FF&E Agreement to the
extent of the value of the Collateral securing such
claim.
Final Order means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction with respect to
the subject matter, which has not been reversed,
stayed, modified, amended or the subject of a motion
for reconsideration, and as to which the time to appeal
or seek certiorari has expired and no appeal or
petition for certiorari has been timely taken, or as to
which any appeal that has been taken or any petition
for certiorari that has been or may be filed has been
resolved by the highest court to which the order or
judgment was appealed or from which certiorari was
sought.
Governmental Unit has the meaning set forth in section 101(27) of the
Bankruptcy Code.
Indemnification Claim means Claims of current and former directors and
officers of the Debtor pursuant to the Debtor's by-
laws, charter, other corporate governance documents, or
under applicable law.
Lien has the meaning set forth in section 101(37) of the
Bankruptcy Code.
Litigation Trust means the sum of $250,000.00 which is to be placed on
the Effective Date into a segregated interest bearing
trust account which may be used only to satisfy
Indemnification Claims (including payment of reasonable
attorneys fees).
Merger Agreement means that certain Amended and Restated Agreement and
Plan of Merger dated as of September 20, 2000 for the
Merger of Debtor with and into NCO Portfolio Funding,
Inc., attached hereto as Exhibit A and all related
documents, as it may be amended from time to time.
NCOF means NCO Financial Systems, Inc., a Pennsylvania
corporation.
NCOG means NCO Group, Inc., a Pennsylvania corporation.
NCOP means NCO Portfolio Funding, Inc., a Delaware
corporation.
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NCOP Unsecured
Obligations means the unsecured obligations of Reorganized
Creditrust to pay the balance, if any, of each Allowed
Class 4 Claim (not paid from the Distributable Cash)
with interest at six percent per annum from the
Effective Date, all in accordance with Section 4.4(c)
of the Plan. The NCOP Unsecured Obligation shall be
paid on the later of the Effective Date or the date a
Class 4 Claim becomes an Allowed Claim.
New By-Laws means the By-Laws of NCOP adopted pursuant to this Plan
and substantially in the form attached as Exhibit D.
New Common Stock means the common stock in Reorganized Creditrust issued
pursuant to the Plan.
New Charter means the amended Certificate of Incorporation of NCOP
adopted in connection with this Plan and substantially
in the form attached as Exhibit C.
New Equipment Notes means the notes to be issued by Reorganized Creditrust
to holders of Allowed FF&E Secured Claims, such notes
to be secured by the respective holder's Collateral.
New Equity Value shall mean $75,000,000, which is within the lower end
of the range of Equity Value of Reorganized Creditrust
described in the Disclosure Statement approved by the
Bankruptcy Court.
New Stock Option Plan means the stock option plan to be adopted by NCOP in
connection with this Plan which shall be available to
employees of Reorganized Creditrust on and after the
Effective Date.
Official Committee means any official statutory committee appointed in the
Chapter 11 Case pursuant to section 1102 of the
Bankruptcy Code.
Old Common Stock means stock in the Debtor issued and outstanding as of
the Record Date.
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Ordinary Course
Professionals means any attorney, accountant or other professional
(other than a Bankruptcy Professional), employed by
Creditrust during the Chapter 11 Case pursuant to an
order of the Bankruptcy Court that designates such
professional as an "Ordinary Course Professional."
Person means a person as defined in section 101(41) of the
Bankruptcy Code.
Petition Date means June 21, 2000, the date the Debtor filed its
voluntary petition under Chapter 11 of the Bankruptcy
Code.
Plan means this plan of reorganization, including, without
limitation, all exhibits, schedules, supplements, and
appendices hereto, either in its present form or as the
same may be altered, amended or modified from time to
time.
Priority Claim means any Claim, other than an Administrative Claim or
a Priority Tax Claim, entitled to priority in right of
payment under section 507(a) of the Bankruptcy Code.
Priority Tax Claim means any Claim of a Governmental Unit of the kind
specified in sections 502(i) and 507(a)(8) of the
Bankruptcy Code.
Record Date means December 21, 2000.
Releasees means (i) all present and former employees, officers,
directors, shareholders, affiliates and subsidiaries of
the Debtor and any other persons who serve or have
served as members of management of the Debtor and all
of their successors and assigns, (ii) all attorneys,
advisors, accountants, financial advisors, agents and
consultants of, or to, the Debtor, and the Official
Committee (if any is appointed), including all
Bankruptcy Professionals and Ordinary Course
Professionals, and (iii) NCOF, in its capacity as
successor servicer to the Debtor.
Rensin Contribution means that certain commitment by Joseph K. Rensin to
purchase $320,786 of New Common Stock on the Effective
Date based on the New Equity Value.
Rensin Note means that certain promissory note dated March 17, 2000
made by Creditrust to Joseph K. Rensin in the face
amount of $647,858.93, representing a claim as of the
Petition Date of $679,213.56.
Reorganized Creditrust means the surviving entity after the Debtor is merged
into NCOP.
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Reserve means the escrow created under Section 4.4(c)(ii)(B) of
the Plan to hold Cash, NCOP Unsecured Obligations and
New Common Stock pending resolution of Disputed Claims.
Schedules means any schedules of assets and liabilities that were
or may be filed by the Debtor pursuant to section 521
of the Bankruptcy Code and Bankruptcy Rule 1007,
including any amendments and modifications thereto
through the Confirmation Date.
Secured Claims means Sunrock Secured Claim and FF&E Secured Claims.
Special Administrative
Claims means all Administrative Claims but excluding (a) all
current post-petition vendor trade payables and
accruals incurred in the ordinary course of business
(not to exceed $2,000,000.00) and (b) reasonable post-
petition fees incurred by the Debtor's
auditor/accountants or other special counsel engaged in
the ordinary course of business or under 11 U.S.C.
(S)327 but only to the extent such fees concern non-
bankruptcy related matters and the same would have been
incurred without regard to the filing of the Chapter 11
Case. Notwithstanding the foregoing, Special
Administrative Claims shall include all reasonable fees
and expenses as approved by the Bankruptcy Court of (i)
all professionals hired by the Creditors' Committee and
(2) Debtor's bankruptcy counsel, Seneca Financial
Group, Inc. and Sunrock Capital Corp., plus any reserve
created by agreement of Creditrust and NCOG to fund
post-Confirmation Date Claims litigation.
SPV99-2 Noteholders means all noteholders of Creditrust SPV99-2, LLC, and
the Trustee for the SPV99-2 Noteholders, to the extent
of its interest.
Stock Transfer Agent means the agent appointed by Reorganized Creditrust to
record the transfer of and to distribute the New Common
Stock pursuant to the Plan and to accept certificates
for Old Common Stock.
Sunrock means Sunrock Capital Corporation.
Sunrock DIP Claim means Sunrock's claim arising out of the DIP Facility.
Sunrock Secured Claim means all claims arising from or related to the Amended
Sunrock Credit Agreement.
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Tax Claim means either (a) an Allowed Unsecured Claim of a
Governmental Unit as provided by section 507(a)(8) of the
Code, or (b) an Allowed Claim of a Governmental Unit secured
by a lien on property of the Debtor under applicable state
law.
Unsecured Claim means any Claim against Creditrust that is not an
Administrative Claim, Priority Tax Claim, Priority Claim,
Sunrock Secured Claim, or FF&E Secured Claim.
1.2 RULES OF INTERPRETATION, COMPUTATION OF TIME,
-------------------------------------------------
AND GOVERNING LAW
-----------------
(a) Rules of Interpretation
For purposes of the Plan: (a) whenever from the context it is
appropriate, each term, whether stated in the singular or the plural, shall
include both the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, feminine and the neuter
gender; (b) any reference in the Plan to a contract, instrument, release,
indenture or other agreement or document being in a particular form or on
particular terms and conditions means that such document shall be substantially
in such form or substantially on such terms and conditions; (c) any reference in
the Plan to an existing document or exhibit filed, or to be filed, shall mean
such document or exhibit, as it may have been or may be amended, modified or
supplemented; (d) unless otherwise specified, all references in the Plan to
sections, articles and exhibits are references to Sections, Articles and
Exhibits of or to the Plan; (e) the words "herein" and "hereto" refer to the
Plan in its entirety rather than to a particular portion of the Plan; (f)
captions and headings to Articles and Sections are inserted for convenience of
reference only and are not intended to be a part of or to affect the
interpretation of the Plan; (g) the rules of construction set forth in section
102 of the Bankruptcy Code shall apply; and (h) any term used in capitalized
form in the Plan that is not defined herein but that is used in the Bankruptcy
Code or the Bankruptcy Rules shall have the meaning assigned to such term in the
Bankruptcy Code or the Bankruptcy Rules, as the case may be.
(b) Computation of Time
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) shall apply.
(c) Governing Law
Except to the extent that the Bankruptcy Code or Bankruptcy Rules are
applicable, and subject to the provisions of any contract, instrument, release,
indenture or other agreement or document entered into in connection with the
Plan, the rights and obligations arising under the Plan
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<PAGE>
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Maryland, without giving effect to the principles of conflict of
laws thereof.
ARTICLE 2 -TREATMENT OF ADMINISTRATIVE CLAIMS
AND PRIORITY TAX CLAIMS
2.1 ADMINISTRATIVE CLAIMS
---------------------
(1) General.
Subject to the Bar Date provisions set forth below, unless otherwise
agreed to by Debtor and the holder of such claim, each holder of an Allowed
Administrative Claim shall receive Cash equal to the unpaid portion of such
Allowed Administrative Claim on the later of (a) the Effective Date or as soon
as practicable thereafter, (b) the date on which such Claim becomes an Allowed
Administrative Claim, and (c) such other date as is mutually agreed upon by the
Debtor (or Reorganized Creditrust) and the holder of such Claim; provided,
--------
however, that Administrative Claims that represent liabilities incurred by the
-------
Debtor in the ordinary course of its business during the Chapter 11 Case shall,
to the extent not paid on or before the Effective Date, be paid by Reorganized
Creditrust in the ordinary course of its business and in accordance with any
terms and conditions of any agreements relating thereto.
(2) Payment of Statutory Fees.
All fees payable pursuant to 28 U.S.C. (S) 1930 shall be paid in Cash
in the full amount of such Administrative Claim when due.
(3) Bar Date for Bankruptcy Professionals' Administrative Claims.
(1) Bankruptcy Professionals. All Bankruptcy Professionals
requesting compensation or reimbursement of expenses pursuant to sections 327,
328, 330, 331, 503(b) or 1103 of the Bankruptcy Code for services rendered
during the Chapter 11 Case (including, without limitation, any compensation
requested by any Bankruptcy Professional or any other entity for making a
substantial contribution to the Chapter 11 Case), shall file and serve on
Reorganized Creditrust, the Official Committee and the United States Trustee for
the District of Maryland an (i) application for final allowance of compensation
and reimbursement of expenses no later than thirty (30) days after the
Confirmation Date. Objections to timely-filed applications of Bankruptcy
Professionals for compensation or reimbursement of expenses must be filed and
served on Reorganized Creditrust and the Bankruptcy Professionals to whose
application the objections are addressed no later than thirty (30) days after
the Confirmation Date, or fifteen (15) days after receipt of such applications,
whichever is later. Any fees and expenses incurred by Reorganized Creditrust
subsequent to the Confirmation Date for services rendered by Bankruptcy
Professionals or any other professionals may be paid by Reorganized Creditrust
with notice to parties-in-interest but without
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<PAGE>
application to the Bankruptcy Court. The Debtor and a holder of an allowed
Administrative Claim may agree to take New Common Stock at the New Equity Value.
(2) Ordinary Course Liabilities. Notwithstanding paragraph (i)
hereof, holders of Administrative Claims based on liabilities incurred in the
ordinary course of the Debtor's business (including Ordinary Course
Professionals) shall not be required to file any request for payment of such
Claims or to file any proof of claim. The Administrative Claims of such Persons,
to the extent allowed under the terms of the Plan and not paid by the Debtor,
shall be paid by Reorganized Creditrust in the ordinary course of its business
according to the ordinary and customary business terms and conditions of the
particular transaction giving rise to such Administrative Claim without the need
for any further action by the holders of such Administrative Claims.
ARTICLE 3 - SUMMARY OF CLASSIFICATION, TREATMENT, AND VOTING RIGHTS OF CLAIMS
AND EQUITY INTERESTS
The categories of Claims and Equity Interests listed below classify Claims
and Equity Interests for all purposes, including voting, confirmation and
distribution pursuant to the Plan and pursuant to Sections 1122 and 1123(a)(1)
of the Bankruptcy Code. A Claim or Equity Interest shall be deemed classified in
a particular Class only to the extent that the Claim or Equity Interest
qualifies within the description of that Class and shall be deemed classified in
a different Class to the extent that any remainder of such Claim or Equity
Interest qualifies within the description of such different Class. A Claim or
Equity Interest is in a particular Class only to the extent that such Claim or
Equity Interest is Allowed in that Class and has not been paid or otherwise
settled prior to the Effective Date.
The classification of Claims and Equity Interests pursuant to this Plan is
as follows:
CLASS STATUS VOTING RIGHTS
----- ------ -------------
Class 1 - Priority Claims Unimpaired Not entitled to vote
Class 2 - Sunrock Secured Claim
and Sunrock DIP Claim Impaired Entitled to vote
Classes 3(i) - 3(x) - FF&E Secured Claims Impaired Entitled to vote
Class 4 - Unsecured Claims Impaired Entitled to vote
Class 5 - Rensin Note Claim Impaired Entitled to vote
Class 6 - SPV99-2 Noteholders Impaired Entitled to vote
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<PAGE>
Class 7 - AGI Impaired Entitled to vote
Class 8 - FDCPA Claims Impaired Entitled to vote
Class 9 - Indemnification Claims Impaired Entitled to vote
of current and former directors
and officers of the Debtor
Class 10 - Administrative Convenience Impaired Entitled to vote
Claims
Class 11 - Equity Interests Impaired Entitled to vote
ARTICLE 4 - CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS
The Allowed Claims against, and Allowed Equity Interests in, Creditrust
shall be treated, and holders thereof shall receive, as follows:
4.1 CLASS 1 - PRIORITY CLAIMS
-------------------------
(1) Classification.
Class 1 consists of all Priority Claims.
(2) Impairment and voting.
Class 1 is unimpaired by the Plan. Each holder of an Allowed Priority Claim
in Class 1 (including Priority Tax Claims) is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(3) Treatment.
Unless the Holder of such Claim and the Debtor agree to a different
treatment, each Holder of an Allowed Priority Claim shall receive one of the
following alternative treatments, at the election of the Debtor:
(i) to the extent then due and owing on the Effective Date, such
Claim will be paid in full in Cash by Reorganized Creditrust;
(ii) to the extent not due and owing on the Effective Date, such
Claim (A) will be paid in full in Cash by Reorganized Creditrust, or (B) will be
paid in full in Cash by
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<PAGE>
Reorganized Creditrust when and as such Claim becomes due and owing in the
ordinary course of business; or
(iii) such Claim will be otherwise treated in any other manner
so that such Claims shall otherwise be rendered unimpaired pursuant to section
1124 of the Bankruptcy Code.
Any default with respect to any Priority Claim that existed immediately
prior to the filing of the Chapter 11 Case shall be deemed cured upon the
Effective Date.
4.2 CLASS 2 - SUNROCK SECURED CLAIM AND SUNROCK DIP CLAIM.
-----------------------------------------------------
(1) Classification.
Class 2 consists of the Sunrock Secured Claim and Sunrock DIP Claim.
(2) Impairment and Voting.
Class 2 is impaired by the Plan. The holder of Allowed Sunrock Secured and
DIP Claims is entitled to vote to accept or reject the Plan.
(3) Treatment.
(i) The amount of the Sunrock DIP Claim shall be added to and
become part of the Sunrock Secured Claim which claim shall continue to be
secured by the assets set forth in the existing documents, as modified by any
prior order of the Bankruptcy Court.
(ii) The Sunrock Secured Claim shall be paid as follows:
(a) to the extent due and owing on the Effective Date,
the Sunrock Secured Claim shall be paid in full with the proceeds of the Exit
Facility; or
(b) such other terms and conditions as may be agreed to
by Sunrock, including payment of a portion of Sunrock's fees with New Common
Stock at the New Equity Value.
4.3 CLASSES 3(i) - 3(x) - FF&E SECURED CLAIMS.
-----------------------------------------
(1) Classification.
Classes 3(i) - 3(x) consists of the following FF&E Secured Claims:
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<PAGE>
(i) Class 3(i) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 12/10/99 executed by the Debtor in favor of
Chesapeake Industrial Leasing Co., Inc. (currently held by Farmers & Mechanics
National Bank)
(ii) Class 3(ii) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 2/14/00 executed by the Debtor in favor of
Chesapeake Industrial Leasing Co., Inc.
(iii) Class 3(iii) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 5/12/00 executed by the Debtor in favor of
Commercial Financial Corporation. (currently held by Marlin Leasing Corp.)
(iv) Class 3(iv) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 12/2/99 executed by the Debtor in favor of
Commercial Finance Corporation. (currently held by BB&T Leasing Corp.)
(v) Class 3(v) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 10/8/99 executed by the Debtor in favor of
Commercial Finance Corporation. (currently held by Cardinal Bank Dulles)
(vi) Class 3(vi) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 12/19/97 executed by the Debtor in favor of
Commercial Finance Corporation (currently held by Presidential Savings Bank).
(vii) Class 3(vii) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 11/3/99 executed by the Debtor in favor of
Commercial Finance Corporation with an original balance of $331,700 (currently
held by Cardinal Bank).
+ (viii) Class 3(viii) consists of the FF&E Secured Claim
evidenced by the Lease Agreement dated 3/15/00 executed by the Debtor in favor
of Chesapeake Industrial Leasing Co. (currently held by Farmers & Mechanics
National Bank)
(ix) Class 3(ix) consists of the FF&E Secured Claim evidenced
by the Lease Agreement dated 6/20/00 executed by the Debtor in favor of Davox
Corporation.
(x) Class 3(x) consists of the FF&E Secured Claim evidenced
by a Master Lease dated as of October 8, 1999, executed by the Debtor in favor
of Commercial Finance Corporation ("CFC") and Schedule of Leased Equipment No. 3
to the Master Lease dated November 3, 1999, which was assigned by CFC to
Cardinal Bank-Manassas/Prince Williams, N.A.
(2) Impairment and Voting.
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<PAGE>
Classes 3(i) - 3(x) are impaired by the Plan. The holders of FF&E Secured
Claims are entitled to vote to accept or reject the Plan, and each sub-class
within Class 3 shall be deemed a separate class for purposes of the Confirmation
Hearing.
(3) Treatment.
On account of its FF&E Secured Claim, each holder shall (a) receive on the
Effective Date a New Equipment Note in a principal amount equal to the
outstanding amount under the Secured Transaction which shall be repaid in
monthly installments of principal and interest (with interest on such notes to
continue at the contract rate set forth in the existing contracts) or (b) shall
receive such other treatment as may be agreed by Reorganized Creditrust and such
holder. The FF&E Secured Claims shall continue to be secured by the Collateral
securing each claim. Each FF&E Secured Claim is being treated as a fully secured
claim with no deficiency claim which will be entitled to any treatment as a
Class 4 claimant. Notwithstanding the foregoing, the Debtor, with the consent of
NCOG, reserves the right to reclassify as an executory contract under the Plan
one or more FF&E Agreements listed above prior to approval of the Disclosure
Statement and to reject such contracts under Article VIII of the Plan.
4.4 CLASS 4 - UNSECURED CLAIMS.
--------------------------
(1) Classification.
Class 4 consists of all Unsecured Claims, but excludes the Rensin Note
Claim, Administrative Convenience Claims and other Unsecured Claims that are
separately classified.
(2) Impairment and Voting.
Class 4 is impaired by the Plan. The holders of Allowed Class 4 Claims are
entitled to vote to accept or reject the Plan.
(3) Treatment.
(i) Each holder of an Allowed Class 4 Claim shall receive Cash
payments to pay such Claims in full with interest as hereinafter described and
as described in Section 4.4 (c)(ii) below. Each holder of an Allowed Class 4
Claim shall be paid interest at the rate of six (6) percent per annum from the
Petition Date to the Effective Date ("Post-Petition Interest").
(ii) (A) The Debtor shall pay on the Effective Date to each
holder of an Allowed Class 4 Claim its pro rata share of the Distributable Cash
(up to a maximum of the Allowed Amount of each such Claim). The balance, if any,
of each such Allowed Claim shall be paid with an NCOP Unsecured Obligation.
(B) Reorganized Creditrust shall hold in the Reserve the
remainder of the Distributable Cash allocable to Disputed Claims as well as the
Cash to pay the
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NCOP Unsecured Obligation in the Reserve. Disputed Claims shall be paid in Cash
with interest at the rate of 6% from the Petition Date to the date when such
Disputed Claim becomes an Allowed Claim. For purposes of this Subsection (B), a
Claim which the Bankruptcy Court determines is covered by insurance (or for
which the claimant agrees to look solely to an insurance policy of the Debtor)
shall not be considered to be a Disputed Claim. Upon resolution of all Class 4
Claims pursuant to Section 4.4(c), the remaining Cash in the Reserve, if any
shall be returned to Reorganized Creditrust.
(C) In lieu of the treatment described in this Section 4.4
above, a holder of a Class 4 Claim may elect, by written notification as
provided in the Ballot, to receive payment of its Allowed Claim in full in New
Common Stock based on the New Equity Value.
4.5 CLASS 5 - RENSIN NOTE CLAIM
---------------------------
(a) Classification.
Class 5 consists of the Rensin Note Claim.
(b) Impairment and Voting.
Class 5 is impaired by the Plan. The holder of the Rensin Note Claim is
entitled to vote to accept or reject the Plan.
(c) Treatment.
The holder of the Rensin Note Claim shall receive, on the Effective Date,
in exchange for cancellation of the Rensin Note, shares of New Common Stock
having a value of $679,213.56 based on the New Equity Value. Additionally, if
holders of Class 4 Claims receive Post-Petition Interest, then the holder of the
Class 5 Claim shall receive Post-Petition Interest payable on the Effective Date
in New Common Stock at the New Equity Value.
4.6 CLASS 6 - SPV99-2 NOTEHOLDERS CLAIMS
------------------------------------
(1) Classification.
Class 6 consists of all SPV99-2 Noteholders.
(2) Impairment and Voting.
Class 6 is impaired by the Plan. The SPV99-2 Noteholders are entitled
to vote to accept or reject the Plan
(3) Treatment.
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(i) The promissory notes (collectively "Notes") which
evidence the claims of the SPV99-2 Noteholders shall be modified as of the
Effective Date to provide for a maturity date of December 31, 2004, interest to
accrue at the contract rate of 15% and amortization schedule to be agreed by the
parties. On the Effective Date of the Plan, the SPV99-2 Noteholders shall
receive a cash payment of $5 million dollars which shall be applied as a
principal reduction to the Notes. In exchange for, and cancellation of, the
Creditrust guarantee of the Notes ("Guarantee") and the warrants issued by
Creditrust to the SPV99-2 Noteholders, each of the SPV99-2 Noteholders shall
receive their pro-rata share of 18.5% of the New Common Stock issued on the
Effective Date under the Plan.
(ii) The Servicing Agreement between Debtor and Creditrust
SPV99-2 LLC dated as of August 2, 1999 (as amended by that certain Amended and
Restated Servicing Agreement dated as of March 1, 2000 collectively "99-2
Servicing Agreement") shall be deemed assumed and assigned to NCOF in its new
capacity as Successor Servicer (as defined in the Servicing Agreement);
provided, however, that such assignment shall be subject to the following as of
the Effective Date; (1) the Servicing Fee shall be reduced from 40% to 20%; (2)
all pre-petition defaults (monetary and non-monetary) shall be deemed waived and
cured, (3) NCOF shall have no liability to indemnify the Issuer, Administrative
Agent or Lenders under the provisions of Section 7 of the 99-2 Servicing
Agreement for acts or omissions of Debtor which occurred prior to the assignment
and NCOF shall be deemed the "Successor Servicer" as defined therein; and (4)
the parties shall agree on such other amendments to the 99-2 Servicing Agreement
consistent with the terms and conditions of a binding term sheet between the
parties, and as such term sheet may be amended by the parties thereto ("Term
Sheet"), dated November 22, 2000.
(iii) Except for obligations created under the Creditrust Plan,
full mutual releases shall be executed on the Effective Date by and among the
SPV99-2 Noteholders, NCOG and Creditrust as provided in the Term Sheet.
(iv) The SPV99-2 Noteholders, Creditrust and NCOP shall agree
upon mutually acceptable securities issues in accordance with the conditions set
forth in the Term Sheet including, without limitation, piggyback and demand
registration rights, lock-up periods, tag-along and drag-along rights. Documents
necessary to memorialize the agreements set forth in the Term Sheet and
paragraphs 4.6(c)(i), (ii) and (iii) shall be agreed to by the parties,
including the Debtor, no later than 10 days prior to the Confirmation Hearing.
4.7 CLASS 7 - AGI
-------------
(a) Classification.
Class 7 consists of all Claims of AGI and EFS.
(b) Impairment and Voting.
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Class 7 is impaired by the Plan. The holders of Allowed Class 7 Claims are
entitled to vote to accept or reject the Plan.
(c) Treatment.
AGI shall be entitled to have an Allowed Claim in the amount of $4.55
million, secured by certain existing reserves referenced in certain pre-petition
agreements and to be satisfied in accordance with the terms of the AGI
Settlement Agreement as it shall be amended by agreement of the parties prior to
the Confirmation Date to be consistent with the ruling of the Bankruptcy Court
of November 28, 2000. In accordance with the terms of the AGI Settlement
Agreement, the EFS Litigation will be dismissed on the Effective Date.
Notwithstanding the terms of the AGI Settlement Agreement, the releases of
Rensin by Creditrust and of Creditrust by Rensin shall be governed by the terms
of the Plan and not by the AGI Settlement Agreement.
4.8 CLASS 8 - FDCPA CLAIMS
----------------------
(a) Classification.
Class 8 consists of all FDCPA Claims.
(b) Impairment and Voting.
Class 8 is impaired by the Plan. The holders of Allowed Class 8 Claims are
entitled to vote to accept or reject the Plan.
(c) Treatment.
Class 8 Claims, and any FDCPA claims, if any, against Wells Fargo Bank,
successor to Norwest Bank as trustee under those indentures with various
subsidiaries of Creditrust, the subsidiaries, affiliates, officers and directors
of the Debtor shall be discharged and such claimants shall receive no
distributions from the Debtor on account of such Claims and shall be deemed to
have waived all such claims and shall look solely to the Debtor's former and
existing professional liability, or other applicable, insurance policies for
payment of such Claims. The Debtor shall create a reserve, not to exceed
$50,000, in the amount of any unpaid deductibles for these insurance policies.
4.9 CLASS 9 - INDEMNIFICATION CLAIMS
--------------------------------
(a) Classification.
Class 9 consists of all Indemnification Claims.
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(b) Impairment and Voting.
Class 9 is impaired by the Plan. The holders of Allowed Class 9 Claims are
entitled to vote to accept or reject the Plan.
(c) Treatment.
Class 9 Claims shall be discharged and such claimants shall receive no
distributions on account of such Claims and shall be deemed to have waived all
such claims and shall look solely to the Litigation Trust Fund for payment of
such Claims. In addition, Class 9 claimants shall continue to receive the
benefits under the Debtor's former and existing D&O insurance policy.
4.10 CLASS 10 - ADMINISTRATIVE CONVENIENCE CLAIM
-------------------------------------------
(a) Classification.
Class 10 consists of all existing Administrative Convenience Claims.
(b) Impairment and Voting.
Class 10 is impaired by the Plan. Each holder of an Administrative
Convenience Claim is entitled to vote to accept or reject the Plan.
(c) Treatment.
Each holder of an Administrative Convenience Claim shall receive payment in
full (with interest at 6% per annum from the Petition Date) on the later of the
Effective Date or the date on which such claim becomes an Allowed Claim.
4.11 CLASS 11 - EQUITY INTERESTS
---------------------------
(1) Classification.
Class 11 consists of all existing Equity Interests.
(2) Impairment and Voting.
Class 11 is impaired by the Plan. Each holder of Equity Interests is
entitled to vote to accept or reject the Plan.
(3) Treatment.
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(i) Each share of Allowed Equity Interests on the Record
Date shall receive a pro rata share of approximately 17.5% of the New Common
Stock in the Reorganized Creditrust (as adjusted in accordance with the terms of
the Plan and the Merger Agreement). Each holder of Old Common Stock shall be
entitled to the number of shares of the New Common Stock allocated to the
holders of Old Common Stock in accordance with the formula set forth in the
Merger Agreement and in the Plan. Subject to Section 4.10 (c)(ii) below and
except as provided in Section 4.6 of the Plan, the stock options (hereafter
"Employee Stock Options") currently being held by employees of Debtor and the
Convertible Securities (as defined in the Merger Agreement) (all of which shall
be deemed voided and canceled, and automatically converted on the Effective Date
into shares of New Common Stock of Reorganized Creditrust in accordance with the
formula set forth in the Merger Agreement,), all other Equity Interests of any
nature whatsoever shall be canceled and extinguished (and shall receive no
distributions under this Plan) including, without limitation, any and all other
outstanding rights, options and warrants to purchase Old Common Stock or any
options or warrants not listed on Schedule 3.3 of the Merger Agreement. The
Employee Stock Options and/or the Convertible Securities when converted into
shares of New Common Stock (in accordance with the formula set forth in the
Merger Agreement) shall dilute the holders of Class 11 Equity Interests. The
existing employee stock option plan shall, as of the Effective Date, be deemed
terminated, null and void and the same shall be replaced by the New Stock Option
Plan.
(ii) (A) The Debtor shall distribute on the Effective Date
pro rata to holders of Allowed Class 11 Interests the Distributable Stock. The
remainder of the New Common Stock that may be distributed to holders of Allowed
---
Class 11 Interests shall be deposited into the Reserve.
(B) Subject to the Special Adjustment provided in
Section 4.13 of the Plan, any remaining New Common Stock in the Reserve after
resolution of Allowed Class 4 Claims shall be distributed pro rata to holders of
Class 11 Interests.
4.12 SPECIAL PROVISION GOVERNING UNIMPAIRED CLAIMS
---------------------------------------------
Except as otherwise provided in the Plan, nothing under the Plan shall
affect the Debtor's or Reorganized Creditrust's rights in respect of any
unimpaired Claims, including, but not limited to, all rights in respect of legal
and equitable defenses to or setoffs or recoupments against such unimpaired
Claims.
4.13 SPECIAL ADJUSTMENT
------------------
After all Disputed Claims are resolved and the Cash has been distributed
from the Reserve, New Common Stock held in the Reserve (including New Common
Stock placed in the Reserve pursuant to Section 4.4(c)(ii)(C) of the Plan) shall
be distributed in the following priority:
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(a) For every $418,000 of NCOP Unsecured Obligations (if any)
existing on the Effective Date, 1% of the New Common Stock shall be distributed
to the following persons in the stated proportions:
NCOG 72.74%
SPV99-2 Noteholders 22.42%
Michael J. Barrist 3.23%
Joseph K. Rensin 1.61%
------
100%
------
The amounts of New Common Stock issued hereunder shall be proportionally
adjusted based upon the exact amount of NCOP Unsecured Obligations.
(b) To holders of Allowed Class 11 Interests, pro rata.
ARTICLE 5 - IMPLEMENTATION OF THE PLAN
5.1 VESTING OF ASSETS IN REORGANIZED CREDITRUST
-------------------------------------------
On the Effective Date, the Debtor shall be merged into NCOP pursuant to the
Merger Agreement. Except as otherwise provided in the Plan, or any agreement,
instrument or indenture entered into between the Debtor and another party
relating thereto, on or after the Effective Date, all property of the Estate,
and any property acquired by the Debtor under the Plan, shall vest in
Reorganized Creditrust, free and clear of all Claims, liens, charges, or other
encumbrances subject to the terms of the Plan. On and after the Effective Date,
Reorganized Creditrust may operate its business and may use, acquire or dispose
of property and compromise or settle any Claims, without supervision or approval
by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan
and the Confirmation Order subject to the terms of the Plan. In accordance with
section 1109(b) of the Bankruptcy Code, nothing in this Article V shall preclude
any party in interest from appearing and being heard on any issue in the Chapter
11 Case.
5.2 MODIFICATION OF SECURITY AGREEMENTS
-----------------------------------
On the Effective Date, except to the extent provided otherwise in the Plan,
all security agreements, instruments, certificates, and other documents
evidencing the Sunrock Secured Claim and the FF&E Secured Claims shall be deemed
amended by the Plan.
5.3 ISSUANCE OF NEW SECURITIES; EXECUTION OF RELATED DOCUMENTS
---------------------------------------------------------------
On the Effective Date, or as soon thereafter as is practical, Reorganized
Creditrust shall execute and deliver such agreements, documents and instruments
as are required to be executed
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pursuant to the terms of the Plan. Reorganized Creditrust shall issue shares of
New Common Stock and any Convertible Securities designated on Schedule 3.3 of
the Merger Agreement all in accordance with the provisions of this Plan and the
Merger Agreement.
5.4 CORPORATE GOVERNANCE, DIRECTORS AND OFFICERS, AND CORPORATE ACTION
------------------------------------------------------------------
(a) Directors and Officers of Reorganized Creditrust
Subject to any requirement of Bankruptcy Court approval pursuant to section
1129(a)(5) of the Bankruptcy Code, as of the Effective Date, the officers and
directors of Debtor shall be deemed to have resigned and the new directors of
Reorganized Creditrust shall be those persons identified in the Confirmation
Order. Joseph K. Rensin and the SPV99-2 Noteholders shall each have the right to
appoint one independent director of Reorganized Creditrust while NCOG shall have
the right to choose the remaining three directors, in all cases for such terms
as are provided for in the Merger Agreement. The independent director appointed
by Joseph K. Rensin may be a director or former director of Creditrust subject
to the consent of NCOG (such consent not to be unreasonably withheld).
(b) Rensin Consulting Agreement.
On the Effective Date, Reorganized Creditrust and Joseph K. Rensin shall
enter into a consulting agreement substantially similar to Exhibit B hereto
("Rensin Agreement").
(c) Corporate Action
On the Effective Date, all actions contemplated by the Plan and the Merger
Agreement shall be authorized and approved in all respects (subject to the
provisions of the Plan). All matters provided for in the Plan involving the
corporate structure of the Debtor or Reorganized Creditrust, and any corporate
action required by the Debtor or Reorganized Creditrust 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 Debtor
or Reorganized Creditrust (including, without limitation, adaptation of the New
By-Laws and New Charter). On the Effective Date, the appropriate officers of
Reorganized Creditrust and members of the board of directors of Reorganized
Creditrust are authorized and directed to issue, execute and deliver the
agreements, documents, securities and instruments contemplated by the Plan in
the name of and on behalf of Reorganized Creditrust.
5.5 INTENTIONALLY DELETED
5.6 SERVICING AGREEMENT
-------------------
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The Servicing Agreement (as defined in the Merger Agreement) shall have
been executed by Reorganized Creditrust and NCOF on or before the Effective
Date. The 99-2 Servicing Agreement (under the terms of Section 4.6(c)) shall
have been assumed by NCOF. The 99-1 Servicing Agreement (under the terms of
Section 10.2(f)) shall have been assumed by NCOF in accordance with the
Settlement Agreement between the Noteholders of Creditrust SPV99-1, LLC, NCOF
and Debtor dated November 13, 2000 ("99-1 Settlement Agreement").
5.7 LITIGATION TRUST
----------------
Documents evidencing the formation of the Litigation Trust consistent with
the Plan and reasonably satisfactory to the Debtor and NCOG shall have been
executed on or before the Effective Date.
ARTICLE 6 - METHOD OF DISTRIBUTIONS UNDER THE PLAN
6.1 IN GENERAL.
-----------
Subject to Bankruptcy Rule 9010, all distributions under the Plan shall be
made by Reorganized Creditrust to the holder of each Allowed Administrative
Claim and Allowed Claim in the following manner:
(1) Distributions to Holders of Other Claims.
All Distributions on account of Allowed Administrative Claims and
Allowed Claims shall be made directly by Reorganized Creditrust (or its
designee) to the holder of the Administrative Claim and the Claim (as the case
may be) as of the Effective Date at the address of such holder as listed on the
Schedules unless the Debtor-in-Possession or Reorganized Creditrust has been
notified in writing (with a copy to Debtor's counsel) at least 10 days prior to
the Effective Date of a change of address by the filing of a proof of Claim by
such holder that provides an address for such holder different from the address
reflected on the Schedules.
(2) Post-Effective Date Distributions.
Any subsequent distributions required to be made under the Plan after
the Effective Date to holders of any Claims shall be made by Reorganized
Creditrust (or its designee) in accordance with the terms of the Plan.
(c) Prior to the Effective Date, the Debtor shall provide the
Creditors' Committee with a list of all Allowed Administrative Expense Claims,
Allowed Priority Claims and Allowed Class 4 and 10 Creditors who will receive a
distribution pursuant to the Plan, setting forth the amount of each holder's
Allowed Claim and the distribution to be made thereto. The Reorganized
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Debtor shall thereafter file and serve on the Creditors' Committee a detailed
report of all payments made pursuant to the terms of the Plan.
6.2 DISTRIBUTIONS OF CASH.
----------------------
At the option of Reorganized Creditrust, any payment or distribution of
Cash made by Reorganized Creditrust pursuant to the Plan shall be made by check
or wire transfer.
6.3 TIMING OF DISTRIBUTIONS.
------------------------
Any payment or distribution required to be made under the Plan on a day
other than a Business Day shall be made on the next succeeding Business Day.
6.4 UNCLAIMED DISTRIBUTIONS.
------------------------
(1) If any distribution to a holder of an Administrative Claim
Equity Interest or Claim is returned as undeliverable, Reorganized Creditrust
shall use reasonable efforts to determine the current identity and address of
such holder, but no distribution to such holder shall be made unless and until a
determination has been made concerning the then-current identity and address of
such holder, at which time such distribution shall be made to such holder
without further interest. If no proof of Claim or Proof of Interest has been
filed and the Schedules fail to specify the address of such holder of an Allowed
Administrative Claim or Allowed Claims, the distributions in respect of such
Administrative Claims, Equity Interests or Claims shall, within six months after
the distribution date, be deemed unclaimed property under section 347(b) of the
Bankruptcy Code. All unclaimed payments shall revert to Reorganized Creditrust
and such Administrative Claims, Equity Interests or Claims shall be discharged
and forever barred.
(2) Funds remaining upon termination of the Litigation Trust shall
revert to the Reorganized Creditrust free and clear of all liens, claims and
encumbrances (unless reverted sooner at the direction of the Board of Directors
of Reorganized Creditrust).
(3) Any payments (or distributions of New Common Stock) to holders
of Claims that remain unclaimed for six months after the Effective Date shall be
retained by Reorganized Creditrust.
6.5 DISTRIBUTIONS MADE ONLY TO RECORD HOLDERS
-----------------------------------------
(1) Distributions to Holders of Claims as of the Effective Date.
As of the close of business on the Effective Date, the Reorganized
Creditrust shall be entitled to rely on its Schedules or other records for
purposes of determining the identities and addresses of holders of all Claims
and Equity Interests and Reorganized Creditrust shall not be required to make
any further changes in the record holders of any Claims or Equity Interest. The
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Debtor and Reorganized Creditrust shall have no obligation to recognize any
transfer of any Claims or Equity Interests, or the right to receive the NCOP
Unsecured Obligation, occurring after the Effective Date and shall be entitled
to recognize and deal for all purposes under the Plan only with those Persons
who were record holders of the Claims and Equity Interests as of the close of
business on the Effective Date.
(b) Distributions to Holders of Equity Interests as of the Effective
Date.
At the close of business on the Effective Date, the Stock Transfer Agent
shall have been designated by the Board of Directors of Reorganized Creditrust
under such terms and conditions as the board deems appropriate who shall
distribute the New Common Stock in accordance with the terms of this Plan.
ARTICLE 7 - PROCEDURES FOR THE TREATMENT OF DISPUTED CLAIMS
7.1 DISALLOWANCE OF LATE CLAIMS.
---------------------------
Subject to section 502(j) of the Bankruptcy Code and Bankruptcy Rules 3008
and 9006, any Administrative Claim, Equity Interest or Claim for which the
filing of a proof of claim or other filing with the Bankruptcy Court is required
under the terms of the Bankruptcy Code, the Bankruptcy Rules, any order of the
Bankruptcy Court (including one providing a Bar Date) or the Plan shall be
disallowed if and to the extent that such proof of claim (or other filing) is
not timely and properly made.
7.2 PROSECUTION OF OBJECTIONS TO CLAIMS.
-----------------------------------
Unless otherwise ordered by the Bankruptcy Court after notice and a
hearing, the Debtor-in-Possession or Reorganized Creditrust shall have the
exclusive right to make and file objections to proofs of Claims, proofs of
Interest and to Administrative Claims (or to any amounts listed in the Schedules
as disputed, contingent or unliquidated) at any time on or before the Effective
Date. Subsequent to the Effective Date, only Reorganized Creditrust shall have
the right to make and file objections to proofs of claim, proofs of interest and
Administrative Claims; provided, however, that, if in existence, the Creditors'
Committee may intervene in any objections and object to any settlement proposed
by Reorganized Creditrust, and may object to any Claims not previously objected
to.
7.3 NO DISTRIBUTIONS PENDING ALLOWANCE.
----------------------------------
Notwithstanding any other provision hereof, if a Claim or Equity Interest
is Disputed (partial or otherwise), no payment or distribution (partial or
otherwise) shall be made on account of such Claim and/or Equity Interest, unless
and until such Disputed Claim becomes an Allowed Claim and/or such Disputed
Interest becomes an Allowed Interest.
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7.4 DISTRIBUTIONS AFTER ALLOWANCE.
-----------------------------
Payments and distributions to each holder of a Claim that is Disputed, or
that is not Allowed, to the extent that such Claim ultimately becomes Allowed,
shall be made in accordance with the provisions hereof governing the Class of
Claims in which such Claim is classified. As soon as practicable after the date
that the order or judgment of the Bankruptcy Court allowing any Disputed Claim
becomes a Final Order, Reorganized Creditrust shall distribute to the holder of
such Claim any payment or property that would have been distributed to such
holder if the Claim had been Allowed as of the Effective Date (or such other
date on which such distribution would have been made).
ARTICLE 8 - EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
-------------------------------------------------------------------
Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all
executory contracts and unexpired leases (including any equipment leases other
than any FF&E Agreements) that exist between the Debtor and any person shall be
deemed rejected by Reorganized Creditrust as of the Effective Date, except for
any executory contract or unexpired lease (a) that has been assumed pursuant to
an order of the Bankruptcy Court entered prior to the Confirmation Date, or (b)
that is set forth in Schedule A hereto; provided, however, that the Debtor-in-
----------
Possession or Reorganized Creditrust, with the consent of NCOG, reserves the
right, on or prior to the Confirmation Date, to amend Schedule A to delete any
----------
executory contract or unexpired lease therefrom or add any executory contract or
unexpired lease thereto, in which event such executory contract(s) or unexpired
lease(s) shall be deemed to be, respectively, assumed or rejected. The Debtor-
in-Possession or Reorganized Creditrust shall provide notice of any amendments
to Schedule A to the parties to the executory contracts and unexpired leases
----------
affected thereby prior to the Confirmation Hearing. The listing of a document
on Schedule A shall not constitute an admission by the Debtor-in-Possession or
----------
Reorganized Creditrust that such document constitutes an executory contract or
an unexpired lease or that the Debtor-in-Possession or Reorganized Creditrust
has any liability thereunder.
8.2 APPROVAL OF ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES.
----------------
Entry of the Confirmation Order shall constitute (a) the approval, pursuant
to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption (and
to the extent indicated, assignment) of all executory contracts and unexpired
leases that are assumed pursuant to Schedule A of the Plan, and (b) the
----------
approval, pursuant to sections 365(a) and 1123(b)(2) the Bankruptcy Code, of the
rejection of all other executory contracts and unexpired leases.
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8.3 CURE OF DEFAULTS.
----------------
Except as may otherwise be agreed to by the parties, on the Effective Date,
Reorganized Creditrust shall cure any and all undisputed defaults under any
executory contract or unexpired lease assumed pursuant to the Plan in accordance
with section 365(b)(1) of the Bankruptcy Code. All disputed defaults that are
required to be cured shall be cured either within 30 days of the entry of a
Final Order determining the amount, if any, of the Debtor-in-Possession's or
Reorganized Creditrust's liability with respect thereto, or as may otherwise be
agreed to by the parties. After the Effective Date, all defaults under any
executory contract assumed under the Plan (monetary and/or non-monetary) shall
be deemed cured.
8.4 BAR DATE FOR FILING PROOFS OF CLAIM RELATING TO ANY
REJECTED EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
-------------------------------------------------
Claims arising out of the rejection of an executory contract or unexpired
lease pursuant to this Article VIII must be filed with the Bankruptcy Court and
served upon the attorneys for the Debtor-in-Possession (or Reorganized
Creditrust) no later than thirty days after the notice of entry of an order
approving the rejection of such executory contract or unexpired lease. Any
Claims not filed within such time shall be forever barred from assertion against
the Debtor, its estate, Reorganized Creditrust and/or its property or assets.
Unless otherwise ordered by the Bankruptcy Court, all Claims arising from the
rejection of executory contracts and unexpired leases shall be treated as
Unsecured Claims under the Plan and shall be subject to any objections,
limitations and reductions available under the Bankruptcy Code or other
applicable law.
8.5 INSURANCE POLICIES.
------------------
Each of the Debtor's insurance policies and any agreements, documents or
instruments relating thereto shall be treated as executory contracts under the
Plan. Notwithstanding the foregoing, distributions under the Plan to any holder
of a Claim covered by any of such insurance policies and related agreements,
documents or instruments that are assumed hereunder, shall be in accordance with
the treatment provided under Article IV of the Plan. Nothing contained in this
Section 8.5 shall constitute or be deemed a waiver of any claim right or cause
of action that the Debtor or Debtor-in-Possession may hold against the insurer
under any policy of insurance, or against the holder of a Claim covered by
insurance policies.
8.6 INDEMNIFICATION OBLIGATIONS.
---------------------------
For purposes of the Plan, other than as set forth in Section 4.9(c) above,
the obligations of the Debtor-in-Possession (or Reorganized Creditrust) to
defend, indemnify, reimburse or limit the liability of any current and former
directors, officers or employees who were directors, officers or employees,
respectively, before, on or after the Commencement Date against any claims or
obligations pursuant to the Debtor's certificate of incorporation or by-laws,
applicable state law or any specific agreement, or any combination of the
foregoing, shall terminate upon the Effective Date
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and shall be discharged in connection with an event occurring before, on or
after the Effective Date.
8.7 COMPENSATION AND BENEFIT PROGRAMS.
---------------------------------
Except as provided in Section 8.1 of the Plan and unless otherwise
modified, terminated or rejected on or before the Effective Date, all
employment, consulting and severance practices and policies, and all
compensation, retention and benefit plans, policies, and programs of the Debtor-
in-Possession applicable to its directors, officers, employees, consultants or
independent contractors, including, without limitation, all savings plan,
retirement plans, health care plans, severance benefit plans, incentive plans,
workers' compensation programs and life, disability and other insurance plans
shall be deemed to be executory contracts under the Plan and are hereby assumed
by Reorganized Creditrust pursuant to sections 365(a) and 1123(b)(2) of the
Bankruptcy Code (but all stock option plans are deemed terminated as of the
Effective Date and replaced by the New Stock Option Plan which shall only apply
to employees of Reorganized Creditrust). All the foregoing with respect to
Rensin shall be governed by the Rensin Agreement referred to in Section 5.4(b)
above which shall replace and supercede any rights to the foregoing which Rensin
may have.
ARTICLE 9 - RELEASES, WAIVERS AND EXCULPATION
9.1 RELEASE BY REORGANIZED CREDITRUST.
---------------------------------
Except as otherwise expressly stated in the Plan, on the Effective Date the
Debtor and Reorganized Creditrust (on its own behalf and as the representative
of the Bankruptcy Estate), in consideration of services rendered in the Chapter
11 Case and the distributions provided for hereunder and for other good and
valuable consideration, will waive and release, and shall be deemed to have
forever waived and released, and shall cause its wholly-owned subsidiaries to
waive and release unconditionally, each and every one of the Releasees from any
and all claims, obligations, suits, judgments, damages, rights, Causes of Action
and liabilities whatsoever (including, without limitation, those arising under
the Bankruptcy Code), whether known or unknown, foreseen or unforeseen, existing
or thereafter arising, in law, equity or otherwise, based in whole or in part on
any act, omission, transaction, event or other occurrence taking place before,
on or after the Commencement Date up to the Effective Date, in any way relating
to the Debtor (before, on or after the Commencement Date), the Debtor-in-
Possession, the financial condition of the Debtor and/or Debtor-in-Possession,
the Chapter 11 Case, the Plan, and the ownership, management and/or operation of
the Debtor.
9.2 RELEASES BY HOLDERS OF CLAIMS AND EQUITY INTERESTS AND FORMER EQUITY
--------------------------------------------------------------------
INTERESTS.
---------
Except as otherwise expressly provided in the Plan, as of the Effective
Date, each holder of a Claim against, or Equity Interest in or former Equity
Interest in, the Debtor, in consideration of the treatment provided under the
Plan, hereby forever waives and releases the Debtor, the Debtor-in-
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Possession, Reorganized Creditrust, NCOF, in its capacity as successor servicer
to the Debtor, and NCOP from claims, obligations, rights, Causes of Action and
liabilities, in law, equity or otherwise held directly, indirectly or
derivatively by the Debtor, the Debtor-in-Possession (or any party acting on
their behalf or on behalf of the Bankruptcy Estate) or such holder of a Claim or
Equity Interest against such individuals and entities, whether known or unknown,
existing or hereafter arising, based in whole or in part upon any act or
omission or other event occurring prior to the Commencement Date or during the
course of the Chapter 11 Case (including without limitation any Claims under 11
U.S.C. (S)503(b)(3)(D)), including through the Effective Date, in any way
relating to the Debtor (before, on or after the Commencement Date), the Debtor-
in-Possession, the financial condition of the Debtor and/or Debtor-in-
Possession, the Chapter 11 Case, the Plan, and the ownership, management and/or
operation of the Debtor.
9.3 MUTUAL RELEASES.
---------------
Except as otherwise expressly provided in the Plan on the Effective Date,
each of the Debtor, the Debtor-in-Possession (for itself and for the Bankruptcy
Estate), Reorganized Creditrust, and the Releasees hereby forever waives and
releases any and all Causes of Action and/or Avoidance Actions that it has or
may have against each other in connection with, or arising under, the financial
condition of the Debtor and/or Debtor-in-Possession, the Chapter 11 Case, the
Plan, all documents related to the Plan (including the Disclosure Statement) and
all of the representations, negotiations and transactions relating to all of the
foregoing.
9.4 NO LIABILITY FOR SOLICITATION OR PARTICIPATION.
----------------------------------------------
(1) Pursuant to section 1125(e) of the Bankruptcy Code, the
Confirmation Order shall provide that all of the Persons who have solicited
acceptances or rejections of the Plan (including the Debtor, the Debtor-in-
Possession, Reorganized Creditrust, and all of their respective officers,
directors, shareholders, attorneys, agents, advisers and employees and all of
the other Releasees) have acted in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, and are not liable on account of
such solicitation or participation, for violation of any applicable law, rule,
or regulation governing the solicitation of acceptances or rejections of the
Plan or the offer, issuance, sale or purchase of securities.
(2) None of the Releasees shall have or incur any liability to any
Person for any act taken or omission made in good faith in connection with or
related to negotiating, formulating, implementing, confirming or consummating
the Plan, the Disclosure Statement, or any contract, instrument, release or
other agreement or document created in connection with the Plan. The Releasees
shall have no liability to any holders of Claims or Equity Interests for actions
taken or omissions made under the Plan, in connection therewith or with respect
thereto in good faith, including, without limitation, failure to obtain
confirmation of the Plan or to satisfy any condition or conditions, or refusal
to waive any condition or conditions precedent to Confirmation of the Plan or to
the occurrence of the Effective Date. Further, the Releasees shall not have or
incur any liability to any holder of a Claim or Equity Interest, or to any
party-in-interest herein or any other Person for
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any act or omission in connection with or arising out of their administration of
the Plan or the payments, distributions or property to be distributed under the
Plan, except for gross negligence or willful misconduct as finally determined by
the Bankruptcy Court, and in all respects such Persons will be entitled to rely
upon the advice of counsel with respect to their duties and responsibilities
under the Plan. However, nothing contained herein shall release any Releasees
from its respective obligations under the Plan.
9.5 BINDING EFFECT OF RELEASES.
--------------------------
(1) The Confirmation Order shall constitute a permanent injunction
and order to effectuate and enforce all the waivers and releases granted in this
Article IX of the Plan.
(2) On the Effective Date, each Releasee and each holder of a Claim
and/or Equity Interest shall be deemed to have agreed to each of the provisions
of this Plan, including Article IX hereof, and shall be fully bound thereby for
all purposes.
ARTICLE 10 - CONDITIONS TO CONFIRMATION AND EFFECTIVENESS OF THE PLAN
10.1 CONSUMMATION OF THE PLAN.
------------------------
The Effective Date of the Plan shall occur in accordance with the
provisions of this Article X of the Plan.
10.2 CONDITIONS TO THE EFFECTIVE DATE OF THE PLAN.
--------------------------------------------
The Plan shall not become effective and the Effective Date shall not occur
unless and until each of the following conditions shall have been either
satisfied or waived pursuant to Section 10.3 of the Plan:
(1) The Confirmation Order, in form and substance acceptable to the
Debtor and NCOP, shall have been signed and entered by the Bankruptcy Court, and
shall be a Final Order;
(2) The Exit Facility shall be available to the Debtor in amount not
less than $50,000,000.00.
(3) All conditions to closing under the Merger Agreement have been
satisfied or waived;
(4) All actions, documents and agreements necessary to implement the
Plan shall have been effected or executed;
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<PAGE>
(5) The sum of all NCOP Unsecured Obligations shall not exceed $7.315
million (subject to reduction based on the NCO purchase price valuation of
shares to the extent holders of Class 4 Claims elect to receive New Common Stock
under Section 4.4(c)(ii)(C) of the Plan or administrative claimants (including
Sunrock) receive New Common Stock in payment of an allowed Administrative
Claim); and
(6) Reorganized Creditrust will have obtained approval to assume and
assign the Indenture and Servicing Agreement ("99-1 Servicing Agreement")
between Debtor, Creditrust SPV99-1, LLC and Norwest Bank Minnesota, N.A., k/n/a
Wells Fargo Bank ("Trustee") to NCO Financial Systems, Inc. with all existing
defaults being deemed waived or through an estoppel certificate or other
agreement from the Trustee in form and substance satisfactory to NCOG, or by an
order of the Bankruptcy Court transferring servicing or otherwise transfers
servicing to on terms acceptable to NCOG. The approval and consummation of the
99-1 Settlement Agreement shall be deemed a satisfaction of the terms of this
subparagraph (f).
(7) The Effective Date shall occur no later than 20 days after the
order confirming the Plan becomes a Final Order.
10.3 EFFECT OF FAILURE OF CONDITIONS.
-------------------------------
In the event that one or more of the conditions specified in Section 10.2
of the Plan have not occurred or been duly waived by the Debtor-in-Possession
and NCOP before 30 days after the Confirmation Date, upon notification submitted
by the Debtor-in-Possession to the Bankruptcy Court, (a) the Confirmation Order
shall be vacated, (b) no distributions under the Plan shall be made, (c) the
Debtor, Debtor-in-Possession and all holders of Claims and Equity Interests
shall be restored to the status quo ante as of the day immediately preceding the
Confirmation Date as though the Confirmation Date never occurred and (d) the
Debtor's obligations with respect to all of the Claims and Equity Interests
shall remain unchanged, and nothing contained herein shall constitute or be
deemed a waiver or release of any Claims or Equity Interests by or against the
Debtor or any other person or to prejudice in any manner the rights of the
Debtor-in-Possession or any person in any further proceedings involving the
Debtor-in-Possession.
10.4 WAIVER OF CONDITIONS.
--------------------
Notwithstanding anything contained in section 10.2 or 10.3 hereof, the
Debtor-in-Possession and NCOP, may waive, by a writing signed by an authorized
representative of the Debtor-in-Possession and NCOP, and subsequently filed with
the Bankruptcy Court, one or more of the conditions precedent to effectiveness
of the Plan set forth in section 10.2, including (without limitation) the
condition that the New Common Stock be approved for listing on the NASDAQ
National Market System.
ARTICLE 11 - EFFECT OF CONFIRMATION OF PLAN
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11.1 TERM OF BANKRUPTCY INJUNCTION OR STAYS.
--------------------------------------
All injunctions or stays provided for in the Chapter 11 Case under section
105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
11.2 REVESTING OF ASSETS.
-------------------
As of the Effective Date, Reorganized Creditrust shall be authorized to
operate its business, and may use, acquire and dispose of property and other
assets free of any restrictions imposed under the Bankruptcy Code. Except as
provided in the Plan, as of the Effective Date, all property of the Debtor and
Reorganized Creditrust shall be free and clear of all Liens, claims,
encumbrances and interests of holders of Claims. All of the Debtor's assets
located at the Call Center shall become the property of NCO Financial Systems,
Inc. as of the Effective Date pursuant to the terms of the Merger Agreement.
All residuals and reserves under any agreements between the Debtor's
subsidiaries and any trustee for a securitization of receivables shall (upon
payment of any obligations due and owing under the agreement which were executed
by a particular subsidiary and subject to the AGI Settlement Agreement) be
dividended to Reorganized Creditrust free and clear of all liens, claims and
encumbrances (other than those in favor of Sunrock).
11.3 DISCHARGE OF DEBTOR.
-------------------
Except as otherwise provided herein, (1) the rights afforded in the Plan
and the treatment of all Claims therein, shall be in exchange for and in
complete satisfaction, discharge and release of Claims of any nature whatsoever,
including any interest accrued on such Claims from and after the Petition Date,
against the Debtor and the Debtor-in-Possession, or any of its assets or
properties, (2) on the Effective Date, all such Claims against the Debtor shall
be satisfied, discharged and released in full and (3) all Persons and Entities
shall be precluded from asserting against Reorganized Creditrust, its successors
or its assets or properties any other or further Claims based upon any act or
omission, transaction or other activity of any kind or nature that occurred
prior to the Effective Date.
11.4 PERMANENT INJUNCTION.
--------------------
Except as otherwise expressly provided in the Plan or the Confirmation
Order, all entities who have held, hold or may hold Claims that are required to
be satisfied under the terms of this Plan, are permanently enjoined, on and
after the Effective Date, from (a) commencing or continuing in any manner any
action or other proceeding of any kind with respect to any such Claim, (b) the
enforcement, attachment, collection or recovery by any manner or means of any
judgment, award, decree or order against the Debtor on account of any such
Claim, (c) creating, perfecting or enforcing any encumbrance of any kind against
the Debtor or against the property or interests in property of the Debtor on
account of any such Claim, and (d) asserting any right of setoff, subrogation or
recoupment of any kind against any obligation due from the Debtor or against the
property or
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interests in property of the Debtor on account of any such Claim. Such
injunction shall also exist and continue for the benefit of all successors of
the Debtor (including, without limitation, Reorganized Creditrust) and its
respective properties and interests in property. All persons and entities shall
be precluded from asserting against NCOG or NCOF, or their assets or properties,
any Claims based upon any act or omission, transaction or other activity of any
kind or nature of Debtor that occurred prior to the Effective Date.
11.5 SETOFFS.
-------
The Debtor may, but shall not be required to, setoff against the
distributions to be made pursuant to the Plan the claims, obligations, rights,
causes of action and liabilities of any nature that the Debtor may hold against
the holder of any Allowed Claim; provided, however that neither the failure to
effect such a setoff nor the allowance of any Claim hereunder shall constitute a
waiver or release by the Debtor of any of these claims, obligations, rights,
causes of action and liabilities that the Debtor has or may have against the
holder.
11.6 SECTION 346 INJUNCTION.
----------------------
In accordance with section 346 of the Bankruptcy Code, for purposes of any
state or local law imposing a tax, income will not be realized by the Bankruptcy
Estate, the Debtor or Reorganized Creditrust by reason of the forgiveness or
discharge of indebtedness resulting from the consummation of the Plan. As a
result, each state or local taxing authority is permanently enjoined and
restrained, after the Confirmation Date, from commencing, continuing, or taking
any act to impose, collect or recover in any manner any tax against the Debtor
or the Reorganized Creditrust arising by reason of the forgiveness or discharge
of indebtedness under this Plan.
11.7 COMPLIANCE WITH TAX REQUIREMENTS.
--------------------------------
In connection with this Plan, the Debtor-in-Possession and Reorganized
Creditrust shall comply with all applicable withholding and reporting
requirements imposed by federal, state, local and foreign taxing authorities,
and all distributions hereunder shall be subject to those withholding and
reporting requirements. Claimants may be required to provide certain tax
information as a condition to receiving distributions pursuant to this Plan.
Notwithstanding any other provision of this Plan, each Person receiving a
distribution pursuant to this Plan will have sole and exclusive responsibility
for the satisfaction and payment of any tax obligations imposed by any
Governmental Unit, including income, withholding and other tax obligations, on
account of that distribution.
ARTICLE 12 - RETENTION OF JURISDICTION
12.1 JURISDICTION.
------------
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The Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of, and related to, the Chapter 11 Case and the Plan pursuant to,
and for the purposes of, sections 105(a) and 1142 for, among other things, the
following purposes:
(1) To ensure that distributions to holders of Allowed Claims are
accomplished as provided herein;
(2) To hear and determine pending applications for the assumption or
rejection of executory contracts or unexpired leases, if any are pending, and
the allowance of Claims resulting therefrom;
(3) To hear and determine any timely objections to Administrative
Claims, or to proofs of Claims filed, both before and after the Confirmation
Date, including without limitation, any objections to the classification of any
Claim, and to allow or disallow any Disputed Claim;
(4) To hear and determine all applications for compensation and
reimbursement of expenses of professionals under sections 330, 331 and 503(b) of
the Bankruptcy Code;
(5) To enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified or
vacated;
(6) To issue such orders in aid of execution and consummation of the
Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(7) To consider any amendments to or modifications of the Plan, to
cure any defect or omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including, without limitation, the Confirmation Order;
(8) To determine any and all adversary proceedings, Causes of Action,
Avoidance Actions, applications and contested matters;
(9) To hear an determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan and agreements entered
into in connection therewith;
(10) To recover all assets of the Debtor and property of the Debtor's
estate, wherever involved to the extent allowed under the Plan;
(11) To hear and determine matters concerning state, local and federal
taxes in accordance with section 346, 505 and 1146 of the Bankruptcy Code;
(12) To hear any other matter not inconsistent with the Bankruptcy
Code; and
(13) To enter a final decree closing the Chapter 11 Case.
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ARTICLE 13 - MISCELLANEOUS PROVISIONS
13.1 EXEMPTION FROM TRANSFER TAXES.
-----------------------------
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance, transfer
or exchange of any notes or equity securities under the Plan, the creation of
any mortgage, deed of trust or other security interest, the making or assignment
of any lease or sublease, or the making or delivery of any deed or other
instrument of transfer under, in furtherance of, or in connection with the Plan,
including, without limitation, any merger agreements or agreements of
consolidation, deeds, bills of sale or assignments executed in connection with
any of the transactions contemplated under the Plan shall not be subject to any
stamp, real estate transfer, mortgage recording or other similar tax.
13.2 EFFECTUATING DOCUMENTS AND FURTHER TRANSACTIONS.
-----------------------------------------------
The Debtor, Reorganized Creditrust, the Creditors' Committee and any other
party whose cooperation is needed in connection with the Plan, are authorized to
execute, deliver, file or record such contracts, instruments, releases,
indentures and other agreements or documents and take such actions as may be
necessary or appropriate to effectuate and further evidence the terms and
conditions of the Plan.
13.3 TERMINATION OF OFFICIAL COMMITTEE.
---------------------------------
The appointment of the Creditors' Committee shall terminate on the later of
(a) the Effective Date or (b) the date when all Disputed Class 4 Claims are
resolved. Committee members will receive no compensation from the Debtor or
Reorganized Creditrust in connection with their service on the Committee, and,
subsequent to the Effective Date, counsel for the Creditors' Committee shall be
paid reasonable fees and expenses by Reorganized Creditrust but such fees and
expenses shall not exceed in the aggregate $50,000.
13.4 AMENDMENT OR MODIFICATION OF THE PLAN.
-------------------------------------
Alterations, amendments or modifications of the Plan (before or after
Confirmation) may be made by the Debtor (with the consent of NCOP to the extent
the Plan of Merger has not been terminated) in accordance with the provisions of
the Bankruptcy Code.
13.5 REVOCATION OR WITHDRAWAL OF THE PLAN.
------------------------------------
The Debtor reserves the right to revoke or withdraw the Plan prior to the
Confirmation Date. If the Debtor revokes or withdraws the Plan prior to the
Confirmation Date, then the Plan shall be deemed null and void. In such event,
nothing contained herein shall constitute or be deemed a waiver or release of
any claims by or against the Debtor or any other person or to prejudice in any
manner the rights of the Debtor or any person in any further proceedings
involving the Debtor.
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13.6 BINDING EFFECT.
--------------
The Plan shall be binding upon and inure to the benefit of the Debtor, the
holders of Claims and Equity Interests, NCOP, NCOG, and their respective
successors and assigns, including, without limitation, Reorganized Creditrust.
13.7 NO ADMISSION.
------------
Notwithstanding anything herein to the contrary, nothing contained in the
Plan shall be deemed as an admission by the Debtor or Debtor-in-Possession, with
respect to any matter set forth herein, including, without limitation, liability
on any claim or the propriety of any Claims classification.
13.8 NOTICES.
-------
All notices, requests and demands to or upon the Debtor or Reorganized
Creditrust to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when actually
delivered or, in the case of notice by facsimile transmission, when received and
telephonically confirmed, or by a nationally recognized overnight delivery
service addressed as follows:
If to the Debtor or Reorganized Creditrust to:
Creditrust Corporation
7000 Security Boulevard
Baltimore, MD 21244-2543
Attn: Joseph K. Rensin
Facsimile: (410) 594-9621
with copies to:
Roger Frankel, Esquire
Swidler Berlin Shereff Friedman, LLP
3000 K Street, N.W., Suite 300
Washington, D.C. 20037
Facsimile: (202) 424-7645
and
NCO Group, Inc.
515 Pennsylvania Avenue
Ft. Washington, PA 19034
Attn: Michael J. Barrist
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<PAGE>
with copies to:
Joel C. Shapiro, Esquire
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, PA 19103
Facsimile: (215) 569-5522
13.9 GOVERNING LAW.
-------------
Except to the extent the Bankruptcy Code, Bankruptcy Rules or other federal
law is applicable, or to the extent an exhibit to the Plan provides otherwise,
the rights and obligations arising under the Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of Maryland,
without giving effect to the principles of conflicts of law of such
jurisdiction.
13.10 WITHHOLDING AND REPORTING REQUIREMENTS.
--------------------------------------
In connection with the consummation of the Plan, the Debtor or Reorganized
Creditrust, as the case may be, shall comply with all withholding and reporting
requirements imposed by any federal, state, local or foreign taxing authority
and all distributions hereunder shall be subject to any such withholding and
reporting requirements.
13.11 PLAN SUPPLEMENT.
---------------
Any and all exhibits or schedules not filed with the Plan shall be
contained in a Plan supplement and filed with the Clerk of the Bankruptcy Court
at least 10 days prior to the Confirmation Hearing. Upon its filing with the
Bankruptcy Court, the Plan supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during normal court hours. Holders of Claims or
Equity Interests may obtain a copy of the Plan supplement upon written request
to the Debtor in accordance with Section 13.08 of the Plan.
13.12 HEADINGS.
--------
Headings are used in the Plan for convenience and reference only, and shall
not constitute a part of the Plan for any other purpose.
13.13 EXHIBITS AND SCHEDULES.
----------------------
All Exhibits and Schedules to the Plan, including the Plan supplement, are
incorporated into and are a part of the Plan as if set forth in full herein.
Dated: December 19, 2000
-39-
<PAGE>
CREDITRUST CORPORATION
a Maryland corporation
By: /s/
____________________________________
JOSEPH K. RENSIN
Chairman and CEO
SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
Attorneys for Creditrust Corporation
By: /s/
_______________________________________
MICHAEL J. LICHTENSTEIN
A Partner of the Firm
Roger Frankel, Esquire
Michael J. Lichtenstein, Esquire
Jonathan P. Guy, Esquire
3000 K Street N.W., Suite 300
Washington, D.C. 20007
Telephone: (202) 424-7500
Facsimile: (202) 424-7645
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<PAGE>
SCHEDULE A
Unexpired Leases and Executory Contracts
1. Servicing agreements
a. Indenture and Servicing Agreement dated as of August 1, 1999, as
amended, among Creditrust SPV99-1, LLC, as Issuer, Norwest Bank
Minnesota, National Association, as Trustee and Backup Servicer of the
Receivables and Creditrust Corporation, as Servicer of the
Receivables, entered into in connection with the Creditrust
Receivables-Backed Notes, Series 1999-1.
b. Amended and Restated Servicing Agreement dated as of March 1, 2000,
among Creditrust SPV99-2, LLC, as Issuer, Creditrust Corporation, as
Servicer of the Consumer Receivables and Norwest Bank Minnesota,
National Association, as Administrative Agent.
2. Real estate lease
a. 1705 Whitehead Road
Baltimore, Maryland 21244
b. 7000 Security Boulevard
Baltimore, Maryland 21244
(assigned to First Federated Realty, Inc.)
3. Insurance Policies
a. Bonds Issued by Travelers Casualty & Surety Co.
1. No. 103042898; effective date 2/17/00; term date 2/17/01;
coverage amount $25,000.00 .
2. No. 103285698; effective date 3/21/00; term date 3/21/01;
coverage amount $360.06 .
3. No. 101120498; effective date 8/19/00; term date 8/19/01;
coverage amount $5,000.00.
4. No. 101120499; effective date 12/31/99; term date 12/31/01;
coverage amount $25,000.00.
5. No. 101120496; effective date 12/31/99, term date 12/31/01;
coverage amount $5,000.00.
6. No. 101140971; effective date 9/8/00; term date 9/8/01;
coverage amount $5,000.00.
7. No. 103231909; effective date 9/30/00; term date 9/30/01;
coverage amount $5,000.00
8. No. 103224718; effective date 9/9/00; term date 9/9/01; coverage
amount $20,000.00.
9. No. 101120500; effective date 8/20/00; term date 8/20/01;
coverage amount $10,000.00.
10. No. 103258391; effective date 1/1/00; term date 1/1/01; coverage
amount $10,000.00.
11. No. 101120497; effective date 8/19/00; term date 8/19/01;
coverage amount $5,000.00.
<PAGE>
b. Others
1. No. 9002544; effective date 8/22/98; term date 8/22/01;
issued by Hartford Mutual.
2. No. DOC297358400; effective date 7/24/00; term date 7/24/01;
issued by Zurich American.
3. No. TFP0001077; effective date 7/24/00; term date 7/24/03;
issued by Philadelphia Insurance Cos.
4. No. HFP0001533; effective date 7/24/00; term date 7/24/01;
issued by Philadelphia Insurance Cos.
5. No. 4007694; effective date 8/22/00; term date 8/22/01;
issued by Hartford Mutual.
4. Utilities
[Global Crossing - entered on 8/12/00]
5. Other Contracts
Software and Maintenance Agreement
----------------------------------
Davox Corporation - entered on 12/30/99.
True Leases
-----------
Advanta Leasing Services - entered on 4/1/00.
