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Exhibit 99.2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
IN RE: : JOINTLY ADMINISTERED
CASE NO. 99-1244 (PJW)
LOEWEN GROUP INTERNATIONAL, INC., :
A DELAWARE CORPORATION, ET AL., : CHAPTER 11
DEBTORS. :
____________________________________:
JOINT PLAN OF REORGANIZATION OF LOEWEN
GROUP INTERNATIONAL, INC., ITS PARENT
CORPORATION AND THEIR DEBTOR
SUBSIDIARIES
WILLIAM H. SUDDELL, JR. (DE 463)
MORRIS, NICHOLS, ARSHT & TUNNELL
1201 North Market Street
Wilmington, Delaware 19899-1347
- and -
RICHARD M. CIERI (OH 0032464)
MICHELLE M. MORGAN (OH 0064833)
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
HENRY L. GOMPF (TX 08116400)
GREGORY M. GORDON (TX 08435300)
JONES, DAY, REAVIS & POGUE
2727 North Harwood
Dallas, Texas 75201
(214) 220-3939
ATTORNEYS FOR DEBTORS AND
DEBTORS IN POSSESSION
November 14, 2000
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TABLE OF CONTENTS
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ARTICLE I DEFINED TERMS, RULES OF INTERPRETATION AND COMPUTATION OF TIME...................................... 1
A. Defined Terms............................................................................... 1
1. "1994 Plan"........................................................................... 1
2. "Administrative Claim"................................................................ 1
3. "Administrative Trade Claim".......................................................... 1
4. "Allowed Claim"....................................................................... 1
5. "Allowed . . . Claim"................................................................. 2
6. "Allowed Class . . . Interest"........................................................ 2
7. "Allowed Interest".................................................................... 2
8. "Available Cash Amount"............................................................... 2
9. "Ballot".............................................................................. 2
10. "Bankruptcy Code"..................................................................... 2
11. "Bankruptcy Court".................................................................... 2
12. "Bankruptcy Rules".................................................................... 2
13. "Bar Date"............................................................................ 2
14. "Bar Date Order"...................................................................... 2
15. "Blackstone".......................................................................... 2
16. "Blackstone Purchase Agreement"....................................................... 2
17. "Blackstone Release".................................................................. 3
18. "Blackstone Settlement"............................................................... 3
19. "Blackstone Settlement Documents"..................................................... 3
20. "BMO Letter of Credit Facility"....................................................... 3
21. "BMO Revolving Credit Facility"....................................................... 3
22. "Business Day"........................................................................ 3
23. "Canadian Court"...................................................................... 3
24. "Cash Investment Yield"............................................................... 3
25. "Cash Management Order"............................................................... 3
26. "CCAA"................................................................................ 3
27. "CCAA Debtors"........................................................................ 4
28. "CCAA Debtor Restructuring Transactions".............................................. 4
29. "CCAA Order".......................................................................... 4
30. "Claim"............................................................................... 4
31. "Claims Objection Bar Date"........................................................... 4
32. "Class"............................................................................... 4
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33. "Confirmation"........................................................................ 4
34. "Confirmation Date"................................................................... 4
35. "Confirmation Hearing"................................................................ 4
36. "Confirmation Order".................................................................. 5
37. "Creditors' Committee"................................................................ 5
38. "CTA"................................................................................. 5
39. "CTA Note Claim"...................................................................... 5
40. "CTA Trustee"......................................................................... 5
41. "Cure Amount Claim"................................................................... 5
42. "Cut-Off Date"........................................................................ 5
43. "Cut-Off Date Balance Sheet".......................................................... 5
44. "Debtors"............................................................................. 5
45. "Delco"............................................................................... 5
46. "DIP Financing Facility".............................................................. 5
47. "DIP Lender".......................................................................... 5
48. "Disbursing Agent".................................................................... 5
49. "Disclosure Statement"................................................................ 5
50. "Disposition Properties".............................................................. 5
51. "Disputed Claim"...................................................................... 6
52. "Disputed Insured Claim" and "Disputed Uninsured Claim"............................... 6
53. "Disputed Interest"................................................................... 6
54. "Distribution Record Date"............................................................ 6
55. "Division"............................................................................ 6
56. "Document Reviewing Centers".......................................................... 6
57. "Effective Date"...................................................................... 6
58. "Estate".............................................................................. 6
59. "Equity Incentive Plan"............................................................... 6
60. "Excess Cash Distribution Amount"..................................................... 6
61. "Exchange Act"........................................................................ 7
62. "Executory Contract and Unexpired Lease".............................................. 7
63. "Exit Financing Facility Agent Bank".................................................. 7
64. "Exit Financing Revolving Credit Facility"............................................ 7
65. "Exit Financing Term Loan"............................................................ 7
66. "Exit Financing Term Loan Closing".................................................... 7
67. "Face Amount"......................................................................... 7
68. "Fee Claim"........................................................................... 7
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69. "Fee Order"........................................................................... 7
70. "File," "Filed" or "Filing"........................................................... 7
71. "Final Order"......................................................................... 8
72. "Indenture Trustee"................................................................... 8
73. "Insured Claim"....................................................................... 8
74. "Intercompany Claim".................................................................. 8
75. "Interest"............................................................................ 8
76. "LGCLP"............................................................................... 8
77. "Loewen Companies".................................................................... 8
78. "Loewen Subsidiary Debtors"........................................................... 8
79. "MEIP Credit Facility"................................................................ 8
80. "MEIPs Debentures".................................................................... 8
81. "MIPS"................................................................................ 8
82. "MIPS Guaranty"....................................................................... 8
83. "MIPS Junior Subordinated Debenture".................................................. 8
84. "Nafcanco"............................................................................ 8
85. "NAFTA"............................................................................... 8
86. "NAFTA Claims"........................................................................ 9
87. "National Securities Exchange"........................................................ 9
88. "Net Proceeds"........................................................................ 9
89. "New Common Stock".................................................................... 9
90. "New Five-Year Secured Notes"......................................................... 9
91. "New Five-Year Secured Notes Indenture"............................................... 9
92. "New Registration Rights Agreement"................................................... 9
93. "New Secured Debt Principal Amount"................................................... 9
94. "New Seven-Year Unsecured Notes"...................................................... 9
95. "New Seven-Year Unsecured Notes Indenture"............................................ 9
96. "New Seven-Year Unsecured Notes Principal Amount"..................................... 9
97. "New Tax Sharing Agreement"........................................................... 9
98. "New Two-Year Unsecured Notes"........................................................ 9
99. "New Two-Year Unsecured Notes Indenture".............................................. 9
100. "New Unsecured Subordinated Note"..................................................... 9
101. "New Unsecured Subordinated Note Principal Amount".................................... 9
102. "Non-Ownership Regulated Debtors"..................................................... 10
103. "O'Keefe Notes"....................................................................... 10
104. "O'Keefe Note Agreement".............................................................. 10
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105. "O'Keefe Note Claim".................................................................. 10
106. "O'Keefe Note Guaranties"............................................................. 10
107. "Old Stock of . . ." or " . . . Old Stock"............................................ 10
108. "Ordinary Course Professionals Order"................................................. 10
109. "PATS Notes".......................................................................... 10
110. "Petition Date"....................................................................... 10
111. "Plan"................................................................................ 10
112. "Pledgor"............................................................................. 10
113. "Prepetition Indenture"............................................................... 10
114. "Prepetition Note Agreement".......................................................... 10
115. "Prime"............................................................................... 10
116. "Prime Put/Call Agreement"............................................................ 10
117. "Principal CTA Creditors"............................................................. 10
118. "Priority Claim"...................................................................... 11
119. "Priority Tax Claim".................................................................. 11
120. "Professional"........................................................................ 11
121. "Pro Rata"............................................................................ 11
122. "Public Notes"........................................................................ 11
123. "Public Note Claims".................................................................. 11
124. "Quarterly Distribution Date"......................................................... 11
125. "Realized Asset Disposition Proceeds Amount".......................................... 11
126. "Real Property Executory Contract and Unexpired Lease"................................ 11
127. "Recovery Actions".................................................................... 11
128. "Reinstated" or "Reinstatement"....................................................... 12
129. "Reinvestment Transactions"........................................................... 12
130. "Reorganization Case"................................................................. 12
131. "Reorganized . . ."................................................................... 12
132. "Reserved Shares"..................................................................... 12
133. "Restructuring Transactions".......................................................... 12
134. "Retained Claims"..................................................................... 12
135. "Rose Hills".......................................................................... 12
136. "Rose Hills Put/Call Agreement"....................................................... 12
137. "Schedules"........................................................................... 12
138. "Secondary Liability Claim"........................................................... 13
139. "Secured Claim"....................................................................... 13
140. "Securities Litigation"............................................................... 13
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141. "Series 1 Notes"...................................................................... 13
142. "Series 2 Notes"...................................................................... 13
143. "Series 3 Notes"...................................................................... 13
144. "Series 4 Notes"...................................................................... 13
145. "Series 5 Notes"...................................................................... 13
146. "Series 6 Notes"...................................................................... 13
147. "Series 7 Notes"...................................................................... 13
148. "Series D Notes"...................................................................... 13
149. "Series E Notes"...................................................................... 13
150. "Share Purchase Rights"............................................................... 14
151. "Share Purchase Rights Agreement"..................................................... 14
152. "Stipulation of Amount and Nature of Claim"........................................... 14
153. "Subsidiary Restructuring Transactions"............................................... 14
154. "Substantial Contribution Claims"..................................................... 14
155. "Substantial Contribution Claims Amount".............................................. 14
156. "Tax"................................................................................. 14
157. "Third Party Disbursing Agent"........................................................ 14
158. "TLGI Old Common Stock"............................................................... 14
159. "TLGI Old Preferred Stock"............................................................ 14
160. "Tolling Parties"..................................................................... 14
161. "Tort Claim".......................................................................... 14
162. "Trade Claim"......................................................................... 14
163. "UBS Option Contract"................................................................. 14
164. "Uninsured Claim"..................................................................... 15
165. "Unrealized Asset Disposition Proceeds Amount"........................................ 15
166. "Unsecured Claim"..................................................................... 15
167. "Unsecured Claims Reserve"............................................................ 15
168. "U.S. GAAP"........................................................................... 15
169. "Voting Deadline"..................................................................... 15
B. Rules of Interpretation and Computation of Time............................................. 15
1. Rules of Interpretation................................................................. 15
2. Computation of Time..................................................................... 15
ARTICLE II CLASSES OF CLAIMS AND INTERESTS.................................................................... 15
A. Unimpaired Classes of Claims................................................................ 16
1. Class 1 (Unsecured Priority Claims)..................................................... 16
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2. Class 4 (Secured Claims Other than CTA Note Claims)..................................... 16
3. Class 16 (Loewen Company Owned Old Stock in Non-Ownership Regulated Debtors)............ 16
4. Class 18 (Other Equity Interests)....................................................... 16
B. Impaired Classes of Claims and Interests.................................................... 16
1. Class 2 (Loewen Subsidiary Debtor Convenience Claims)................................... 16
2. Class 3 (TLGI and LGII Convenience Claims).............................................. 16
3. Class 5 (CTA Note Claims)............................................................... 16
4. Class 6 (O'Keefe Note Claims)........................................................... 16
5. Class 7 (MIPS Debenture and Guaranty Claims)............................................ 16
6. Class 8 (Intercompany Claims)........................................................... 16
7. Class 9 (Unsecured Nonpriority Claims).................................................. 16
8. Class 10 (MIPS Securities Litigation Claims)............................................ 16
9. Class 11 (Other Securities Litigation Claims)........................................... 17
10. Class 12 (TLGI Old Preferred Stock)..................................................... 17
11. Class 13 (TLGI Old Common Stock)........................................................ 17
12. Class 14 (LGII Old Stock)............................................................... 17
13. Class 15 (Third Party Owned Old Stock of Non-Ownership Regulated Debtors)............... 17
14. Class 17 (Loewen Group Capital, L.P. Partnership Interests)............................. 17
ARTICLE III TREATMENT OF CLAIMS AND INTERESTS................................................................. 17
A. Unclassified Claims......................................................................... 17
1. Payment of Administrative Claims........................................................ 17
2. Payment of Priority Tax Claims.......................................................... 19
B. Unimpaired Classes of Claims................................................................ 19
1. Class 1 (Unsecured Priority Claims)..................................................... 19
2. Class 4 (Secured Claims Other than CTA Note Claims)..................................... 19
3. Class 16 (Loewen Company Owned Old Stock in Non-Ownership Regulated Debtors)............ 20
4. Class 18 (Other Equity Interests)....................................................... 20
C. Impaired Classes of Claims and Interests.................................................... 20
1. Class 2 (Loewen Subsidiary Debtor Convenience Claims)................................... 20
2. Class 3 (TLGI and LGII Convenience Claims).............................................. 20
3. Class 5 (CTA Note Claims)............................................................... 20
4. Class 6 (O'Keefe Note Claims)........................................................... 20
5. Class 7 (MIPS Debenture and Guaranty Claims)............................................ 20
6. Class 8 (Intercompany Claims)........................................................... 20
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7. Class 9 (Unsecured Nonpriority Claims).................................................. 21
8. Class 10 (MIPS Securities Litigation Claims)............................................ 21
9. Class 11 (Other Securities Litigation Claims)........................................... 21
10. Class 12 (TLGI Old Preferred Stock)..................................................... 21
11. Class 13 (TLGI Old Common Stock)........................................................ 21
12. Class 14 (LGII Old Stock)............................................................... 21
13. Class 15 (Third Party Owned Old Stock in Non-Ownership Regulated Debtors)............... 21
14. Class 17 (Loewen Group Capital, L.P. Partnership Interests)............................. 21
D. Special Provisions Regarding the Treatment of Allowed Secondary Liability Claims............ 22
E. Special Provisions Regarding Indenture Trustees' Claims..................................... 22
F. Special Provision Regarding Certain Substantial Contribution Claims......................... 23
ARTICLE IV MEANS FOR IMPLEMENTATION OF THE PLAN............................................................... 23
A. Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors.............. 23
B. Restructuring Transactions.................................................................. 24
1. Subsidiary Restructuring Transactions................................................... 24
2. Reinvestment Transactions............................................................... 24
3. Obligations of Any Successor Corporation in a Restructuring Transaction................. 24
4. Dissolution of LGCLP.................................................................... 24
C. Corporate Governance, Directors and Officers, Employment-Related Agreements and
Compensation Programs................................................................... 25
1. Certificates of Incorporation and Bylaws................................................ 25
2. Directors and Officers of the Reorganized Debtors....................................... 25
3. New Employment, Retirement, Indemnification and Other Related Agreements and
Incentive Compensation Programs.................................................... 25
4. Corporate Action........................................................................ 26
D. Exit Financing Revolving Credit Facility and Exit Financing Term Loan; Obtaining Cash
for Plan Distributions: Transfers of Funds Among the Debtors........................... 26
E. Implementation of the Blackstone Settlement................................................. 26
F. Preservation of Rights of Action; Settlement Agreements and Releases........................ 26
1. Preservation of Rights of Action by the Debtors and the Reorganized Debtors............. 26
2. General Releases........................................................................ 27
3. Releases under the CTA.................................................................. 27
4. Releases in Connection with the Blackstone Settlement................................... 27
5. 1994 Plan Release....................................................................... 27
6. Reservation of Certain Third-Party CTA Claims........................................... 27
G. Continuation of Certain Employee Benefit Plans.............................................. 28
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H. Limitations on Amounts To Be Distributed to Holders of Allowed Insured Claims............... 28
I. Cancellation and Surrender of Instruments, Securities and Other Documentation............... 28
J. New Registration Rights Agreement........................................................... 28
K. Share Purchase Rights Agreement............................................................. 28
L. New Tax Sharing Agreement................................................................... 28
M. Release of Liens............................................................................ 28
N. Effectuating Documents; Further Transactions; Exemption from Certain Transfer Taxes......... 29
ARTICLE V TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES............................................... 29
A. Executory Contracts and Unexpired Leases To Be Assumed or Assumed and Assigned.............. 29
1. Assumption and Assignment Generally..................................................... 29
2. Assumptions and Assignments of Real Property Executory Contracts and Unexpired
Leases............................................................................. 29
3. Assignments Related to the Restructuring Transactions................................... 30
4. Approval of Assumptions and Assignments................................................. 30
B. Payments Related to the Assumption of Executory Contracts and Unexpired Leases.............. 30
C. Executory Contracts and Unexpired Leases To Be Rejected..................................... 30
D. Bar Date for Rejection Damages.............................................................. 31
E. Obligations to Indemnify Directors, Officers and Employees.................................. 31
F. Reinstatement of Allowed Secondary Liability Claims Arising from or Related to
Executory Contracts or Unexpired Leases Assumed by the Debtors.......................... 31
G. Contracts and Leases Entered into After the Petition Date................................... 32
H. NAFTA Contingency Fee....................................................................... 32
ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS................................................................. 32
A. Distributions for Claims Allowed as of the Effective Date................................... 32
1. Distributions To Be Made on the Effective Date.......................................... 32
2. Distributions on the Effective Date in Respect of Class 9 Unsecured Nonpriority
Claims............................................................................. 32
B. Method of Distributions to Holders of Claims................................................ 32
C. Compensation and Reimbursement for Services Related to Distributions........................ 32
D. Provisions Governing the Unsecured Claims Reserve........................................... 33
1. Funding of the Unsecured Claims Reserve................................................. 33
2. Property Held in Unsecured Claims Reserve............................................... 33
E. Delivery of Distributions and Undeliverable or Unclaimed Distributions...................... 33
1. Delivery of Distributions............................................................... 33
2. Undeliverable Distributions Held by Disbursing Agents................................... 34
F. Distribution Record Date.................................................................... 35
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G. Means of Cash Payments...................................................................... 35
H. Timing and Calculation of Amounts To Be Distributed......................................... 35
1. Allowed Claims in Classes Other than Class 9............................................ 35
2. Allowed Claims in Class 9............................................................... 35
3. Distributions of New Common Stock....................................................... 36
4. De Minimis Distributions................................................................ 36
5. Compliance with Tax Requirements........................................................ 36
I. Setoffs..................................................................................... 36
J. Surrender of Canceled Instruments or Securities............................................. 37
1. Tender of Public Notes.................................................................. 37
2. Lost, Stolen, Mutilated or Destroyed Notes.............................................. 37
3. Failure to Surrender Public Notes....................................................... 37
4. Other Notes............................................................................. 37
ARTICLE VII PROCEDURES FOR RESOLVING DISPUTED CLAIMS.......................................................... 38
A. Prosecution of Objections to Claims......................................................... 38
1. Objections to Claims.................................................................... 38
2. Authority to Prosecute Objections....................................................... 38
B. Treatment of Disputed Claims................................................................ 38
C. Distributions on Account of Disputed Claims Once Allowed.................................... 38
D. Tax Requirements for Income Generated by Unsecured Claims Reserve........................... 38
ARTICLE VIII SUBSTANTIVE CONSOLIDATION OF THE DEBTORS......................................................... 39
ARTICLE IX CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN.................................. 39
A. Conditions to Confirmation.................................................................. 39
B. Conditions to the Effective Date............................................................ 39
C. Waiver of Conditions to Confirmation or the Effective Date.................................. 40
D. Effect of Nonoccurrence of Conditions to the Effective Date................................. 40
ARTICLE X CRAMDOWN............................................................................................ 40
ARTICLE XI DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS........................................ 41
A. Discharge of Claims and Termination of Interests............................................ 41
B. Injunctions................................................................................. 41
C. Termination of Subordination Rights and Settlement of Related Claims and Controversies...... 42
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ARTICLE XII RETENTION OF JURISDICTION......................................................................... 42
ARTICLE XIII MISCELLANEOUS PROVISIONS......................................................................... 43
A. Dissolution of the Creditors' Committee..................................................... 43
B. Limitation of Liability..................................................................... 43
C. Modification of the Plan.................................................................... 44
D. Revocation of the Plan...................................................................... 44
E. Severability of Plan Provisions............................................................. 44
F. Successors and Assigns...................................................................... 44
G. Service of Certain Plan Exhibits and Disclosure Statement Exhibits.......................... 44
H. Service of Documents........................................................................ 44
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TABLE OF EXHIBITS(1)
Exhibit I.A.27 List of CCAA Debtors
Exhibit I.A.28 Outline of CCAA Debtor Restructuring Transactions
Exhibit I.A.29 NAFTA Claim assignment provisions(2)
Exhibit I.A.44 TLGI, LGII and Loewen Subsidiary Debtors, including
the applicable Division to which each has been
assigned for purposes of Class 9 of the Plan, an
identification of Pledgors and an identification of
Non-Ownership Regulated Debtors for purposes of Class
15 of the Plan
Exhibit I.A.64 Terms of Exit Financing Revolving Credit Facility(2)
Exhibit I.A.77 Loewen Companies other than TLGI, LGII, Loewen
Subsidiary Debtors and CCAA Debtors
Exhibit I.A.91 New Five-Year Secured Notes Indenture(2)
Exhibit I.A.92 New Registration Rights Agreement(2)
Exhibit I.A.95 New Seven-Year Unsecured Notes Indenture(2)
Exhibit I.A.99 New Two-Year Unsecured Notes Indenture(2)
Exhibit IV.B.1 Summary Outlines of Subsidiary Restructuring
Transactions(2)
Exhibit IV.C.1.a(i) Certificate of Incorporation of Reorganized LGII(2)
Exhibit IV.C.1.a(ii) Bylaws of Reorganized LGII(2)
Exhibit IV.C.1.b(i) Certificates of Incorporation of each Reorganized
Loewen Subsidiary Debtor(2)
Exhibit IV.C.1.b(ii) Bylaws of each Reorganized Loewen Subsidiary Debtor(2)
Exhibit IV.C.2 Initial Directors and Officers of each of the
Reorganized Debtors(2)
Exhibit IV.C.3 List of employment and other agreements and plans
that are in effect or will take effect as of the
Effective Date; Initial Grants under Equity Incentive
Plan
Exhibit IV.F.1 Certain Retained Claims(2)
Exhibit IV.K Share Purchase Rights Agreement(2)
Exhibit IV.L New Tax Sharing Agreement(2)
Exhibit V.A.1 Nonexclusive Schedule of Executory Contracts and
Unexpired Leases To Be Assumed or Assumed and
Assigned(3)
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(1) Except as otherwise indicated, all Exhibits will be available for
review during regular business hours at the Document Reviewing Centers. The
Debtors reserve the right to modify, amend, supplement, restate or withdraw any
of the Exhibits after they are Filed. The Debtors will File all modified,
amended, supplemented or restated Exhibits as promptly as possible and will make
such Exhibits available for review at the Document Reviewing Centers.
(2) To be Filed and available for review at the Document Reviewing Centers
no later than ten days before the deadline to object to the adequacy of the
disclosures set forth in the Disclosure Statement.
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Exhibit V.A.3 Nonexclusive Schedule of Executory Contracts and
Unexpired Leases To Be Assumed or Assumed and Assigned
in Connection with the Restructuring Transactions(3)
Exhibit V.C Schedule of Executory Contracts and Unexpired Leases To
Be Rejected(3)
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(continued...)
(3) To be Filed and available for review at the Document Reviewing Centers
no later than ten days before the deadline to object to Confirmation of the
Plan.
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INTRODUCTION
Loewen Group International, Inc. ("LGII"), its parent
corporation, The Loewen Group Inc. ("TLGI"), and the other above-captioned
debtors and debtors in possession (collectively, the "Debtors") propose the
following joint plan of reorganization (the "Plan") for the resolution of the
outstanding claims against and equity interests in the Debtors. The Debtors are
proponents of the Plan within the meaning of section 1129 of the Bankruptcy
Code. Reference is made to the Debtors' Disclosure Statement, filed
contemporaneously with the Plan, for a discussion of the history, businesses,
results of operations, historical financial information, projections and
properties of the Debtors, and for a summary and analysis of the Plan. There
also are other agreements and documents, which are or will be Filed with the
Bankruptcy Court, that are referenced in the Plan or the Disclosure Statement
and that will be available for review.
ARTICLE I
DEFINED TERMS, RULES OF INTERPRETATION
AND COMPUTATION OF TIME
A. DEFINED TERMS
As used in the Plan, capitalized terms have the meanings set
forth below. Any term that is not otherwise defined herein, but that is used in
the Bankruptcy Code or the Bankruptcy Rules, will have the meaning given to that
term in the Bankruptcy Code or the Bankruptcy Rules, as applicable.
1. "1994 PLAN" means the 1994 Management Equity Investment Plan of
TLGI, as amended or modified.
2. "ADMINISTRATIVE CLAIM" means a Claim (other than a Substantial
Contribution Claim) for costs and expenses of administration allowed under
section 503(b), 507(b) or 1114(e)(2) of the Bankruptcy Code, including: (a) the
actual and necessary costs and expenses incurred after the Petition Date of
preserving the respective Estates and operating the businesses of the Debtors
(such as wages, salaries, commissions for services and payments for inventories,
leased equipment and premises), including Claims under the DIP Financing
Facility; (b) compensation for legal, financial advisory, accounting and other
services and reimbursement of expenses awarded or allowed under section 330(a)
or 331 of the Bankruptcy Code, including Fee Claims; (c) all fees and charges
assessed against the Estates under chapter 123 of title 28, United States Code,
28 U.S.C. Sections 1911-1930; (d) Claims for reclamation allowed in accordance
with section 546(c)(2) of the Bankruptcy Code and section 2-702 of the Uniform
Commercial Code; and (e) all Intercompany Claims accorded priority pursuant to
section 364(c)(1) of the Bankruptcy Code or the Cash Management Order.
3. "ADMINISTRATIVE TRADE CLAIM" means an Administrative Claim arising
from or with respect to the sale of goods or rendition of services on or after
the Petition Date in the ordinary course of the applicable Debtor's business,
including Administrative Claims of employees for ordinary course wages, expense
reimbursement and health and welfare benefits.
4. "ALLOWED CLAIM" means:
a. a Claim that: (i) has been listed by a particular Debtor on
its Schedules as other than disputed, contingent or unliquidated; and
(ii) is not otherwise a Disputed Claim;
b. a Claim (i) for which a proof of Claim or request for
payment of Administrative Claim has been Filed by the applicable Bar
Date or otherwise been deemed timely Filed under applicable law and
(ii) that is not otherwise a Disputed Claim; or
c. a Claim that is allowed: (i) in any Stipulation of Amount
and Nature of Claim executed by the applicable Reorganized Debtor and
Claim holder on or after the Effective Date; (ii) in any contract,
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instrument or other agreement entered into in connection with the Plan
and, if prior to the Effective Date, approved by the Bankruptcy Court;
(iii) in a Final Order; or (iv) pursuant to the terms of the Plan.
5. "ALLOWED . . . CLAIM" means an Allowed Claim in the particular Class
or category specified. Any reference herein to a particular Allowed Claim
includes both the secured and unsecured portions of such Claim.
6. "ALLOWED CLASS . . . INTEREST" means an Allowed Interest in the
particular Class described.
7. "ALLOWED INTEREST" means an Interest: (a) that is registered as of
the Distribution Record Date in a stock register that is maintained by or on
behalf of the applicable Debtor and (b)(i) is not a Disputed Interest or (ii)
has been allowed by a Final Order.
8. "AVAILABLE CASH AMOUNT" means an amount equal to: (a) the amount of
"cash" reflected on the Cut-Off Date Balance Sheet; less (b) the sum of (i) the
amount of any Net Proceeds received by the Debtors on or prior to the Cut-Off
Date in respect of the sale of Disposition Properties, (ii) any amounts
reflected as "cash" on the Cut-Off Date Balance Sheet that are required to be
kept on hand or on deposit with any third person (including any financial
institution) pursuant to any contract or agreement or any law, statute,
governmental regulation (including any insurance regulation) or judicial or
administrative order or decree, (iii) the estimated amount of Administrative
Claims, financing fees and other reorganization expenses as of the Effective
Date, (iv) the estimated aggregate amount of Claims in Classes 1, 2 and 3 as of
the Effective Date, (v) the estimated amount of Claims in Class 4 as to which a
Debtor has elected Option A treatment as provided in Section III.B.2 as of the
Effective Date and (vi) the estimated amount of Cure Amount Claims as of the
Effective Date, all as determined by the Debtors.
9. "BALLOT" means the form or forms distributed to each holder of an
impaired Claim entitled to vote on the Plan on which the holder indicates
acceptance or rejection of the Plan or, in the case of a holder of an Unsecured
Claim in Class 9, whether such holder elects to have such Unsecured Claim
treated in Class 2 or Class 3, as applicable, rather than Class 9, in accordance
with Section II.B.1 or Section II.B.2. With respect to any Ballot on which a
holder elects to have an Unsecured Claim treated in Class 2 or Class 3, for
voting purposes under the Plan that Ballot will be treated as being voted in
Class 2 or Class 3, as the case may be.
10. "BANKRUPTCY CODE" means title 11 of the United States Code, 11
U.S.C. Sections 101-1330, as now in effect or hereafter amended.
11. "BANKRUPTCY COURT" means the United States District Court having
jurisdiction over the Reorganization Cases and, to the extent of any reference
made pursuant to 28 U.S.C. Section 157, the bankruptcy unit of such District
Court.
12. "BANKRUPTCY RULES" means, collectively, the Federal Rules of
Bankruptcy Procedure and the local rules of the Bankruptcy Court, as now in
effect or hereafter amended.
13. "BAR DATE" means the applicable bar date by which a proof of Claim
must be or must have been Filed, as established by an order of the Bankruptcy
Court, including the Bar Date Order and the Confirmation Order.
14. "BAR DATE ORDER" means an order of the Bankruptcy Court
establishing Bar Dates for Filing proofs of Claims in the Reorganization Cases,
as the same may be amended, modified or supplemented.
15. "BLACKSTONE" means, collectively, Blackstone Capital Partners II
Merchant Banking Fund L.P. and certain of its affiliates.
16. "BLACKSTONE PURCHASE AGREEMENT" means an agreement between LGII or
Reorganized LGII and Blackstone pursuant to which on the Effective Date, LGII or
Reorganized LGII will purchase from Blackstone, and Blackstone will sell to LGII
or Reorganized LGII, all common stock of Rose Hills owned by Blackstone, in
exchange for the issuance to Blackstone of the New Unsecured Subordinated Note
in an original principal amount equal to the New Unsecured Subordinated Note
Principal Amount.
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17. "BLACKSTONE RELEASE" means a mutual release to be executed and
delivered by Reorganized LGII and certain of its affiliates, on the one hand,
and Blackstone, on the other hand, pursuant to which each will, as of the
Effective Date, forever release, waive and discharge the other and affiliates
thereof from any and all claims, demands, rights or causes of action under or in
respect of the Prime Put/Call Agreement and the Rose Hills Put/Call Agreement or
otherwise relating to or involving Prime or Rose Hills, in form and substance
acceptable to the parties thereto.
18. "BLACKSTONE SETTLEMENT" means the settlement and resolution between
LGII and certain of its affiliates and Blackstone of all claims, issues and
disputes between such parties relating to or involving Prime, Rose Hills or the
Reorganization Cases on substantially the following terms:
a. In full satisfaction of its asserted Claims against TLGI
and LGII, Blackstone will receive distributions of New Common Stock
under Division A (TLGI) and Division B (LGII) of Class 9 in accordance
with the terms of the Plan having an estimated aggregate value of $6.6
million as of the Effective Date. If the settlement is approved and
Confirmation occurs, Blackstone will assert no other Claims against the
Debtors.
b. On or prior to the Effective Date, the Blackstone Purchase
Agreement will be executed and delivered by the parties thereto.
c. On or prior to the Effective Date, the Blackstone Release
will be executed and delivered by the parties thereto.
19. "BLACKSTONE SETTLEMENT DOCUMENTS" means any and all agreements,
documents and instruments (including the Blackstone Purchase Agreement and the
Blackstone Release) necessary or appropriate to document, effectuate and
consummate the Blackstone Settlement, each in form and substance acceptable to
the parties thereto.
20. "BMO LETTER OF CREDIT FACILITY" means the Letter of Credit
Facility, dated as of July 16, 1996, by and between Bank of Montreal and LGII,
together with the guaranty thereof by TLGI.
21. "BMO REVOLVING CREDIT FACILITY" means the Second Amended and
Restated Credit Agreement, dated as of March 27, 1998, as amended or modified,
between LGII, as borrower, TLGI, as guarantor, the lenders named therein, as
lenders, and Bank of Montreal, as L/C Issuer, swing line lender and
administrative and syndication agent.
22. "BUSINESS DAY" means any day, other than a Saturday, Sunday or
"legal holiday" (as defined in Bankruptcy Rule 9006(a)).
23. "CANADIAN COURT" means the Ontario Superior Court of Justice having
jurisdiction in respect of the CCAA Debtors under the CCAA.
24. "CASH INVESTMENT YIELD" means the net yield earned by the
applicable Disbursing Agent from the investment of cash held pending
distribution pursuant to the Plan (including any dividends and other
distributions on account of New Common Stock), which investment will be in a
manner consistent with the Reorganized Debtors' investment and deposit
guidelines.
25. "CASH MANAGEMENT ORDER" means the "Order: (A) Approving Centralized
Cash Management Systems, Entry into Letter Agreement with Wachovia Bank, N.A.,
Certain Intercompany Transactions with Nondebtor Affiliates, Use of Existing
Bank Accounts and Business Forms and Current Investment and Deposit Guidelines;
and (B) According Superiority Status to All Postpetition Intercompany Claims"
entered by the Bankruptcy Court on June 1, 1999, as amended June 11, 1999.
26. "CCAA" means the Companies' Creditors Arrangement Act, R.S.C. 1985,
c. C-36, as amended, of Canada.
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27. "CCAA DEBTORS" means those companies subject to the proceedings
under the CCAA before the Canadian Court (Court File No. 99-CL-3384) and
identified on Exhibit I.A.27.
28. "CCAA DEBTOR RESTRUCTURING TRANSACTIONS" means those restructuring
transactions involving the CCAA Debtors as described in Exhibit I.A.28.
29. "CCAA ORDER" means one or more orders of the Canadian Court
providing that:
a. a plan of arrangement pursuant to the terms of the Business
Corporations Act (Ontario) to effect the CCAA Debtor Restructuring
Transactions is approved;
b. in consideration for LGII making the distributions to
TLGI's creditors set out in Article III hereof, TLGI will assign,
transfer and deliver (or, in the case of NAFTA Claims arising under
Article 1117 of NAFTA, will cause Delco to assign, transfer and
deliver), free and clear of all liens, claims and encumbrances,
including all Claims:
i. to LGII, all of TLGI's right, title and interest
to and under all rights, properties and assets of every kind,
character and description, wherever located and whether
tangible or intangible, real or personal or fixed or
contingent then owned, held, used, licensed, conceived,
developed or offered for sale with a license by TLGI in
connection with or otherwise arising out of the conduct of its
business other than (A) its rights in the NAFTA Claims and (B)
its membership interests in Delco and
ii. to Nafcanco, which will be a wholly owned
subsidiary of LGII, all right, title and interest in and to
all proceeds of the NAFTA Claims arising under Article 1116 of
NAFTA; and to LGII all right, title and interest in and to all
proceeds of the NAFTA Claims arising under Article 1117 of
NAFTA; and in respect thereof, TLGI will irrevocably delegate
to Nafcanco all powers and responsibilities of TLGI in respect
of the pursuit and prosecution of the NAFTA Claims; all in
accordance with the terms of Exhibit I.A.29;
such consideration having a value equal to the fair market value of
such rights, properties and assets, all without the need for any
further action by TLGI's directors or shareholders, but subject to such
other terms and conditions as may be imposed by the Canadian Court; and
c. on the Effective Date none of the holders of a CTA Note
Claim will have any further claim against the CCAA Debtors.
30. "CLAIM" means a "claim," as defined in section 101(5) of the
Bankruptcy Code, against any Debtor.
31. "CLAIMS OBJECTION BAR DATE" means, for all Claims, other than those
Claims allowed in accordance with Section I.A.4.c, the latest of: (a) 150 days
after the Effective Date; (b) 90 days after the Filing of a proof of Claim for
such Claim; and (c) such other period of limitation as may be specifically fixed
by the Plan, the Confirmation Order, the Bankruptcy Rules or a Final Order for
objecting to such Claim.
32. "CLASS" means a class of Claims or Interests, as described in
Article II.
33. "CONFIRMATION" means the entry of the Confirmation Order on the
docket of the Bankruptcy Court.
34. "CONFIRMATION DATE" means the date on which the Bankruptcy Court
enters the Confirmation Order on its docket, within the meaning of Bankruptcy
Rules 5003 and 9021.
35. "CONFIRMATION HEARING" means the hearing held by the Bankruptcy
Court on Confirmation of the Plan, as such hearing may be continued from time to
time.
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36. "CONFIRMATION ORDER" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
37. "CREDITORS' COMMITTEE" means the official committee of unsecured
creditors of the Debtors appointed by the United States Trustee in the
Reorganization Cases pursuant to section 1102 of the Bankruptcy Code.
38. "CTA" means the Collateral Trust Agreement, dated as of May 15,
1996, among the CTA Trustee, TLGI, LGII and the Pledgors, as amended or
modified.
39. "CTA NOTE CLAIM" means a Claim under the BMO Revolving Credit
Facility, the MEIP Credit Facility, the Series D Notes, the Series E Notes or
the Public Notes, including any and all guaranties thereof.
40. "CTA TRUSTEE" means Bankers Trust Company, as trustee under the
CTA.
41. "CURE AMOUNT CLAIM" means a Claim based upon a Debtor's defaults
pursuant to an Executory Contract or Unexpired Lease at the time such contract
or lease is assumed by that Debtor under section 365 of the Bankruptcy Code.
42. "CUT-OFF DATE" means the close of business on the last day of the
month immediately preceding the month during which the Effective Date occurs.
43. "CUT-OFF DATE BALANCE SHEET" means the consolidated balance sheet
of TLGI as of the Cut-Off Date prepared in accordance with U.S. GAAP.
44. "DEBTORS" means, collectively, TLGI, LGII and the debtors and
debtors in possession identified in Exhibit I.A.44.
45. "DELCO" means a Delaware limited liability company formed as a
wholly owned subsidiary of LGII.
46. "DIP FINANCING FACILITY" means, collectively: (a) the
Debtor-in-Possession Credit Agreement, dated as of May 24, 2000, as it may be
subsequently amended and modified, among the Debtors, those entities identified
therein as "Lenders" and their respective successors and assigns and First Union
National Bank (as agent bank); (b) all amendments thereto and extensions
thereof; and (c) all security agreements and instruments related to the
documents identified in (a) and (b).
47. "DIP LENDER" means, collectively: (a) those entities identified as
"Lenders" in the DIP Financing Facility and their respective successors and
assigns and (b) First Union National Bank (as agent bank).
48. "DISBURSING AGENT" means Reorganized LGII, in its capacity as a
disbursing agent pursuant to Section VI.B, or any Third Party Disbursing Agent.
49. "DISCLOSURE STATEMENT" means the disclosure statement (including
all exhibits and schedules thereto or referenced therein) that relates to the
Plan, as approved by the Bankruptcy Court pursuant to section 1125 of the
Bankruptcy Code, as the same may be amended, modified or supplemented.
50. "DISPOSITION PROPERTIES" means, collectively: (a) Security
Industrial Insurance Company; (b) the properties of the Debtors described in
paragraph 11 of the Bankruptcy Court's "Order (A) Approving Global Bid
Procedures Program and (B) Authorizing Debtors to Grant Pre-Approved Bid
Protections to Prospective Purchasers" dated January 21, 2000; and (c) the
properties of the Debtors described in paragraph 3 of the Bankruptcy Court's
"Order Establishing Procedures for Transactions Involving Certain Miscellaneous
Assets" dated August 25, 1999.
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51. "DISPUTED CLAIM" means:
a. if no proof of Claim has been Filed by the applicable Bar
Date or has otherwise been deemed timely Filed under applicable law:
(i) a Claim that is listed on a Debtor's Schedules as other than
disputed, contingent or unliquidated, but as to which the applicable
Debtor, Reorganized Debtor or, prior to the Confirmation Date, any
other party in interest, has Filed an objection by the Claims Objection
Bar Date and such objection has not been withdrawn or denied by a Final
Order; or (ii) a Claim that is listed on a Debtor's Schedules as
disputed, contingent or unliquidated;
b. if a proof of Claim or request for payment of an
Administrative Claim has been Filed by the Bar Date or has otherwise
been deemed timely Filed under applicable law: (i) a Claim for which no
corresponding Claim is listed on a Debtor's Schedules; (ii) a Claim for
which a corresponding Claim is listed on a Debtor's Schedules as other
than disputed, contingent or unliquidated, but the nature or amount of
the Claim as asserted in the proof of Claim varies from the nature and
amount of such Claim as it is listed on the Schedules; (iii) a Claim
for which a corresponding Claim is listed on a Debtor's Schedules as
disputed, contingent or unliquidated; (iv) a Claim for which an
objection has been Filed by the applicable Debtor, Reorganized Debtor
or, prior to the Confirmation Date, any other party in interest, by the
Claims Objection Bar Date, and such objection has not been withdrawn or
denied by a Final Order; or (v) a Tort Claim; or
c. a Claim if the holder of such Claim is subject to a
Retained Claim listed on Exhibit IV.F.1 and such Retained Claim has not
been resolved pursuant to a Final Order.
52. "DISPUTED INSURED CLAIM" AND "DISPUTED UNINSURED CLAIM" mean,
respectively, an Insured Claim or an Uninsured Claim that is also a Disputed
Claim.
53. "DISPUTED INTEREST" means an Interest as to which: (a) an objection
(i) has been timely Filed under applicable law and (ii) has not been withdrawn
on or before any date fixed by the Plan or by order of the Bankruptcy Court for
Filing such objections; and (b) such objection has not been denied by a Final
Order.
54. "DISTRIBUTION RECORD DATE" means the Confirmation Date.
55. "DIVISION" means a subclass of Claims in Class 9 based upon the
classification of the Debtors as set forth on Exhibit I.A.44.
56. "DOCUMENT REVIEWING CENTERS" means, collectively: (a) the offices
of Jones, Day, Reavis & Pogue located at (i) North Point, 901 Lakeside Avenue,
Cleveland, Ohio 44114 and (ii) 599 Lexington Avenue, 32nd Floor, New York, New
York 10022; (b) the offices of Meighen Demers located at Merrill Lynch Canada
Tower, 200 King Street West, Toronto, Ontario M5H 3T4; and (c) any other
locations designated by the Debtors at which any party in interest may review
all of the exhibits and schedules to the Plan and the Disclosure Statement.
57. "EFFECTIVE DATE" means a day, as determined by the Debtors, that is
the Business Day as soon as reasonably practicable after all conditions to the
Effective Date in Section IX.B have been met or waived pursuant to Section IX.C.
58. "ESTATE" means, as to each Debtor, the estate created for that
Debtor in its Reorganization Case pursuant to section 541 of the Bankruptcy
Code.
59. "EQUITY INCENTIVE PLAN" means the Equity Incentive Plan to be
adopted by Reorganized LGII on the Effective Date as described on Exhibit
IV.C.3.
60. "EXCESS CASH DISTRIBUTION AMOUNT" means the sum of: (a) $35 million
and (b) if the Available Cash Amount exceeds $80 million, an amount equal to 75%
of any such excess.
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61. "EXCHANGE ACT" means the Securities Exchange Act of 1934, 15 U.S.C.
Sections 78a-78jj, as now in effect or hereafter amended.
62. "EXECUTORY CONTRACT AND UNEXPIRED LEASE" OR "EXECUTORY CONTRACT OR
UNEXPIRED LEASE" means a contract or lease to which one or more of the Debtors
is a party that is subject to assumption or rejection under section 365 of the
Bankruptcy Code.
63. "EXIT FINANCING FACILITY AGENT BANK" means the agent bank under the
Exit Financing Revolving Credit Facility and the Exit Financing Term Loan.
64. "EXIT FINANCING REVOLVING CREDIT FACILITY" means a secured
revolving credit facility in the amount of $100 million, including a $30 million
letter of credit sub-facility, which will be entered into by Reorganized LGII
and the Exit Financing Facility Agent Bank on the Effective Date on
substantially the terms set forth on Exhibit I.A.64.
65. "EXIT FINANCING TERM LOAN" means a secured term loan in an original
principal amount equal to the New Secured Debt Principal Amount, which will be
entered into by Reorganized LGII and the Exit Financing Facility Agent Bank on
the Effective Date if satisfactory terms can be agreed upon by such parties.
66. "EXIT FINANCING TERM LOAN CLOSING" means the closing on the
Effective Date of the Exit Financing Term Loan, including the funding of the New
Secured Debt Principal Amount thereunder.
67. "FACE AMOUNT" means:
a. when used with reference to a Disputed Insured Claim,
either (i) the full stated amount claimed by the holder of such Claim
in any proof of Claim Filed by the Bar Date, or otherwise deemed timely
Filed under applicable law, if the proof of Claim specifies only a
liquidated amount; (ii) if no proof of Claim is Filed by the Bar Date
or otherwise deemed timely Filed under applicable law, the full amount
of the Claim listed on the Schedules, provided that such amount is not
listed as disputed, contingent or unliquidated; or (iii) the applicable
deductible under the relevant insurance policy, minus any reimbursement
obligations of the applicable Debtor to the insurance carrier for sums
expended by the insurance carrier on account of such Claim (including
defense costs), if such amount is less than the amount specified in (i)
or (ii) above or the proof of Claim specifies an unliquidated amount;
and
b. when used with reference to a Disputed Uninsured Claim,
either (i) the full stated amount claimed by the holder of such Claim
in any proof of Claim Filed by the Bar Date or otherwise deemed timely
Filed under applicable law, if the proof of Claim specifies only a
liquidated amount; or (ii) the amount of the Claim acknowledged by the
applicable Debtor or Reorganized Debtor in any objection Filed to such
Claim or in the Schedules as an undisputed, noncontingent and
liquidated Claim, estimated by the Bankruptcy Court pursuant to section
502(c) of the Bankruptcy Code, proposed by the Debtors or established
by the Reorganized Debtors following the Effective Date, if no proof of
Claim has been Filed by the Bar Date or has otherwise been deemed
timely Filed under applicable law or if the proof of Claim specifies an
unliquidated amount.
68. "FEE CLAIM" means a Claim (other than a Substantial Contribution
Claim) under section 330(a), 331, 503 or 1103 of the Bankruptcy Code for
compensation of a Professional or other entity for services rendered or expenses
incurred in the Reorganization Cases.
69. "FEE ORDER" means the "Administrative Order, Pursuant to Sections
105 and 331 of the Bankruptcy Code, Establishing Procedures for Interim
Compensation and Reimbursement of Expenses of Professionals" entered by the
Bankruptcy Court on or about August 24, 1999.
70. "FILE," "FILED" OR "FILING" means file, filed or filing with the
Bankruptcy Court or its authorized designee in the Reorganization Cases.
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71. "FINAL ORDER" means an order or judgment of the Bankruptcy Court,
or other court of competent jurisdiction, as entered on the docket in any
Reorganization Case or the docket of any other court of competent jurisdiction,
that has not been reversed, stayed, modified or amended, and as to which the
time to appeal or seek certiorari or move for a new trial, reargument or
rehearing has expired, and no appeal or petition for certiorari or other
proceedings for a new trial, reargument or rehearing has been timely taken, or
as to which any appeal that has been taken or any petition for certiorari that
has been timely filed has been withdrawn or resolved by the highest court to
which the order or judgment was appealed or from which certiorari was sought or
the new trial, reargument or rehearing shall have been denied or resulted in no
modification of such order.
72. "INDENTURE TRUSTEE" means an indenture trustee under one of the
Prepetition Indentures or any successor thereto.
73. "INSURED CLAIM" means any Claim arising from an incident or
occurrence alleged to have occurred prior to the Effective Date that is covered
under an insurance policy, other than a workers' compensation insurance policy,
applicable to the Debtors or their businesses.
74. "INTERCOMPANY CLAIM" means any claim by a Loewen Company against a
Debtor other than an Administrative Claim.
75. "INTEREST" means the rights of the holder of the Old Stock of any
Debtor and the rights of any entity to purchase or demand the issuance of any of
the foregoing, including: (a) redemption, conversion, exchange, voting,
participation and dividend rights; (b) liquidation preferences; and (c) stock
options and warrants.
76. "LGCLP" means Loewen Group Capital, L.P.
77. "LOEWEN COMPANIES" means TLGI, LGII, all Loewen Subsidiary Debtors,
the CCAA Debtors and each other entity that is wholly-owned, directly or
indirectly, by TLGI or LGII, including the entities listed on Exhibit I.A.77.
78. "LOEWEN SUBSIDIARY DEBTORS" means, individually or collectively, a
Debtor or Debtors other than TLGI or LGII.
79. "MEIP CREDIT FACILITY" means the Amended and Restated MEIP Credit
Agreement, dated as of June 14, 1994, as amended and restated on May 15, 1996,
as amended or modified, among Loewen Management Investment Corporation, in its
capacity as agent for LGII, Wachovia Bank of Georgia, N.A., as agent, and the
banks listed therein as lenders.
80. "MEIPS DEBENTURES" means the 1994 Exchangeable Floating Rate
Debentures due July 15, 2001 issued by LGII to Loewen Management Investment
Corporation.
81. "MIPS" means the 9.45% Cumulative Monthly Income Preferred
Securities, Series A, issued by LGCLP.
82. "MIPS GUARANTY" means the guaranty made by TLGI in respect to the
MIPS Junior Subordinated Debentures.
83. "MIPS JUNIOR SUBORDINATED DEBENTURE" means the subordinated
debenture issued by LGII pursuant to the Indenture, dated as of August 15, 1994,
between LGII, TLGI, as guarantor, and State Street Bank and Trust Company, as
trustee.
84. "NAFCANCO" means a Nova Scotia unlimited liability company formed
as a wholly owned subsidiary of LGII.
85. "NAFTA" means the North American Free Trade Agreement.
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86. "NAFTA CLAIMS" means the claims held by TLGI as of immediately
prior to the Effective Date against the United States of America under NAFTA for
injury to itself and its investment in the United States of America, and LGII,
as a result of NAFTA breaches involving the State of Mississippi, which claims
are currently the subject of a pending proceeding before an arbitration panel
appointed pursuant to the rules of the International Centre for Settlement of
Investment Disputes.
87. "NATIONAL SECURITIES EXCHANGE" means any exchange registered
pursuant to section 6(a) of the Exchange Act.
88. "NET PROCEEDS" means the aggregate cash proceeds received by the
Debtors in respect of the sale of any of the Disposition Properties, net of the
direct costs relating to such sale, including: (a) legal, accounting and
investment banking fees and sales commissions paid or payable in connection with
such sale; (b) any taxes paid or payable as a result of such sale; and (c) any
amounts required to be applied to the repayment of indebtedness secured by a
lien on the asset or assets that were the subject of the sale (other than the
DIP Financing Facility).
89. "NEW COMMON STOCK" means the shares of common stock, par value
$0.01 per share, of Reorganized LGII, authorized pursuant to the certificate of
incorporation of Reorganized LGII.
90. "NEW FIVE-YEAR SECURED NOTES" means the secured notes of
Reorganized LGII to be issued to holders of Allowed Claims in Class 5 pursuant
to the New Five-Year Secured Notes Indenture.
91. "NEW FIVE-YEAR SECURED NOTES INDENTURE" means the indenture between
Reorganized LGII and the trustee named therein substantially in the form of
Exhibit I.A.91.
92. "NEW REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement between Reorganized LGII and the holders of New Common Stock named
therein with respect to the registration of shares of New Common Stock held by
such parties, substantially in the form of Exhibit I.A.92.
93. "NEW SECURED DEBT PRINCIPAL AMOUNT" means $250 million.
94. "NEW SEVEN-YEAR UNSECURED NOTES" means the unsecured notes of
Reorganized LGII to be issued to holders of Allowed Claims in Class 5 pursuant
to the New Seven-Year Unsecured Notes Indenture.
95. "NEW SEVEN-YEAR UNSECURED NOTES INDENTURE" means the indenture
between Reorganized LGII and the trustee named therein substantially in the form
of Exhibit I.A.95.
96. "NEW SEVEN-YEAR UNSECURED NOTES PRINCIPAL AMOUNT" means $325
million.
97. "NEW TAX SHARING AGREEMENT" means the tax sharing agreement among
the Reorganized Debtors and certain of the other Loewen Companies, substantially
in the form of Exhibit IV.L.
98. "NEW TWO-YEAR UNSECURED NOTES" means the unsecured notes of
Reorganized LGII to be issued to holders of Allowed Claims in Class 5 pursuant
to the New Two-Year Unsecured Notes Indenture.
99. "NEW TWO-YEAR UNSECURED NOTES INDENTURE" means the indenture
between Reorganized LGII and the trustee named therein substantially in the form
of Exhibit I.A.99.
100. "NEW UNSECURED SUBORDINATED NOTE" means the unsecured subordinated
note of Reorganized LGII to be issued to Blackstone in connection with the
Blackstone Settlement, in form and substance acceptable to Reorganized LGII and
Blackstone.
101. "NEW UNSECURED SUBORDINATED NOTE PRINCIPAL AMOUNT" means $25
million.
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102. "NON-OWNERSHIP REGULATED DEBTORS" means a Debtor listed as such on
Exhibit I.A.44, certain Old Stock of which is owned by a person or entity other
than a Loewen Company and such ownership is not required by the governmental
regulations applicable to such Debtor.
103. "O'KEEFE NOTES" means: (a) the note dated June 2, 1997, issued by
LGII, Reimann Holdings, Inc. and Wright & Ferguson Funeral Home to Teachers
Insurance and Annuity Association pursuant to the O'Keefe Note Agreement; and
(b) the note dated June 2, 1997, issued by the same entities to certain
individuals and law firms named therein.
104. "O'KEEFE NOTE AGREEMENT" means the Note Agreement by LGII and
TLGI, as guarantor, and accepted by Teachers Insurance and Annuity Association,
dated as of November 15, 1997, as amended or modified.
105. "O'KEEFE NOTE CLAIM" means a Claim against LGII, Reimann Holdings,
Inc. and Wright & Ferguson Funeral Home under the O'Keefe Note Agreement or the
O'Keefe Notes or against TLGI under the O'Keefe Note Guaranties.
106. "O'KEEFE NOTE GUARANTIES" means the Guaranties dated as of June 2,
1997, by TLGI, as amended or modified, in respect of the O'Keefe Notes.
107. "OLD STOCK OF . . ." OR " . . . OLD STOCK" means, when used with
reference to a particular Debtor or Debtors, the common stock, preferred stock,
membership interests, partnership interests or similar ownership interests,
including options, warrants or rights to acquire any such interests, issued by
such Debtor or Debtors and outstanding immediately prior to the Petition Date.
108. "ORDINARY COURSE PROFESSIONALS ORDER" means the "Order Authorizing
Debtors and Debtors in Possession to Retain, Employ and Pay Professionals in the
Ordinary Course of the Debtors' Businesses" entered by the Bankruptcy Court on
or about June 1, 1999.
109. "PATS NOTES" means the PATS Guaranteed Notes issued pursuant to
the Indenture, dated as of September 30, 1997, as amended or modified, among
LGII, as issuer, TLGI, as guarantor, and State Street Bank and Trust, as
trustee.
110. "PETITION DATE" means June 1, 1999.
111. "PLAN" means this joint plan of reorganization for the Debtors, to
the extent applicable to any Debtor, and all exhibits attached hereto or
referenced herein, as the same may be amended, modified or supplemented.
112. "PLEDGOR" means a pledgor under the CTA, including the Debtor
pledgors that are listed on Exhibit I.A.44.
113. "PREPETITION INDENTURE" means an indenture in respect to any of
the Public Notes, as applicable.
114. "PREPETITION NOTE AGREEMENT" means the Series D Note Agreement or
the Series E Note Agreement, as applicable.
115. "PRIME" means Prime Succession Holdings, Inc.
116. "PRIME PUT/CALL AGREEMENT" means the Put/Call Agreement, dated as
of August 26, 1996, as amended or modified, among Blackstone, PSI Management
Direct L.P., TLGI and LGII and any and all agreements, documents and instruments
related thereto or executed and delivered in connection therewith.
117. "PRINCIPAL CTA CREDITORS" means Angelo Gordon & Co., Cerberus
Capital Management, Franklin Mutual Advisers, LLP and Oaktree Capital Management
LLC.
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118. "PRIORITY CLAIM" means a Claim that is entitled to priority in
payment pursuant to section 507(a) of the Bankruptcy Code that is not an
Administrative Claim or a Priority Tax Claim.
119. "PRIORITY TAX CLAIM" means a Claim that is entitled to priority in
payment pursuant to section 507(a)(8) of the Bankruptcy Code.
120. "PROFESSIONAL" means any professional employed in the
Reorganization Cases pursuant to section 327 or 1103 of the Bankruptcy Code or
any professional or other entity seeking compensation or reimbursement of
expenses in connection with the Reorganization Cases pursuant to section
503(b)(4) of the Bankruptcy Code.
121. "PRO RATA" means:
a. when used with reference to a distribution of cash, New
Five-Year Secured Notes, New Two-Year Unsecured Notes, New Seven-Year
Unsecured Notes or New Common Stock to holders of Allowed Claims in a
Class or, in the case of Class 9, a Division of Class 9 pursuant to
Article III, proportionately so that with respect to a particular
Allowed Claim in such Class or Division of Class 9, the ratio of (i)(A)
the amount of cash, New Five-Year Secured Notes, New Two-Year Unsecured
Notes, New Seven-Year Unsecured Notes or New Common Stock distributed
on account of such Claim to (B) the amount of such Claim, is the same
as the ratio of (ii)(A) the amount of cash, New Five-Year Secured
Notes, New Two-Year Unsecured Notes, New Seven-Year Unsecured Notes or
New Common Stock distributed on account of all Allowed Claims in such
Class or Division of Class 9 to (B) the amount of all Allowed Claims in
such Class or Division of Class 9; and
b. when used with reference to distributions of cash to
holders of Allowed Claims in a Division of Class 9, including the Cash
Investment Yield, the portion of cash allocable to a particular Allowed
Claim on the basis of the amount of cash then being distributed on
account of such Claim (including dividends and other distributions on
New Common Stock being distributed on account of such Claim).
Calculations of the Pro Rata shares of Cash Investment Yield to be
distributed at any particular time will be based on the Cash Investment
Yield generated as of the last day of the month prior to the month in
which such distributions are to be made.
122. "PUBLIC NOTES" means any of the Series 1 Notes, the Series 2
Notes, the Series 3 Notes, the Series 4 Notes, the Series 5 Notes, the Series 6
Notes, the Series 7 Notes and the PATS Notes.
123. "PUBLIC NOTE CLAIMS" means any Claim arising under the Public
Notes.
124. "QUARTERLY DISTRIBUTION DATE" means the last Business Day of the
month following the end of each calendar quarter after the Effective Date;
provided, however, that if the Effective Date is within 45 days of the end of a
calendar quarter, the first Quarterly Distribution Date will be the last
Business Day of the month following the end of the first calendar quarter after
the calendar quarter in which the Effective Date falls.
125. "REALIZED ASSET DISPOSITION PROCEEDS AMOUNT" means an amount equal
to the aggregate Net Proceeds received by the Debtors on or prior to the
Effective Date in respect of the sale of Disposition Properties.
126. "REAL PROPERTY EXECUTORY CONTRACT AND UNEXPIRED LEASE" means,
collectively, an Executory Contract or Unexpired Lease relating to a Debtor's
interest in real property and any Executory Contracts and Unexpired Leases
granting rights or interests related to or appurtenant to the applicable real
property, including all easements; licenses; permits; rights; privileges;
immunities; options; rights of first refusal; powers; uses; usufructs;
reciprocal easement or operating agreements; vault, tunnel or bridge agreements
or franchises; development rights; and any other interests in real estate or
rights in rem related to the applicable real property.
127. "RECOVERY ACTIONS" means, collectively and individually,
preference actions, fraudulent conveyance actions, rights of setoff and other
claims, demands, rights or causes of action under sections 502(d), 510, 544,
547, 548, 549, 550 and 553 of the Bankruptcy Code and other applicable
bankruptcy or nonbankruptcy law.
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128. "REINSTATED" OR "REINSTATEMENT" means rendering a Claim or
Interest unimpaired within the meaning of section 1124 of the Bankruptcy Code.
Unless the Plan specifies a particular method of Reinstatement, when the Plan
provides that an Allowed Claim or Allowed Interest will be Reinstated, such
Claim or Interest will be Reinstated, at the applicable Reorganized Debtor's
sole discretion, in accordance with one of the following:
a. the legal, equitable and contractual rights to which such
Claim or Interest entitles the holder will be unaltered; or
b. notwithstanding any contractual provision or applicable law
that entitles the holder of such Claim or Interest to demand or receive
accelerated payment of such Claim or Interest after the occurrence of a
default:
i. any such default that occurred before or after the
commencement of the applicable Reorganization Case, other than
a default of a kind specified in section 365(b)(2) of the
Bankruptcy Code, will be cured;
ii. the maturity of such Claim or Interest as such
maturity existed before such default will be reinstated;
iii. the holder of such Claim or Interest will be
compensated for any damages incurred as a result of any
reasonable reliance by such holder on such contractual
provision or such applicable law; and
iv. the legal, equitable or contractual rights to
which such Claim or Interest entitles the holder of such Claim
or Interest will not otherwise be altered.
129. "REINVESTMENT TRANSACTIONS" means the transactions specified in
Section IV.B.2.
130. "REORGANIZATION CASE" means: (a) when used with reference to a
particular Debtor, the chapter 11 case pending for that Debtor in the Bankruptcy
Court; and (b) when used with reference to all Debtors, the chapter 11 cases
pending for the Debtors in the Bankruptcy Court.
131. "REORGANIZED . . ." means, when used in reference to a particular
Debtor, such Debtor on and after the Effective Date.
132. "RESERVED SHARES" means the shares of New Common Stock to be
placed in the applicable Unsecured Claims Reserve for distribution to holders of
a Division of Allowed Claims in Class 9 in the amount specified in Section
III.C.7.
133. "RESTRUCTURING TRANSACTIONS" means, collectively, the Subsidiary
Restructuring Transactions and the Reinvestment Transactions.
134. "RETAINED CLAIMS" means those claims, demands, rights and causes
of action set forth in Exhibit IV.F.1.
135. "ROSE HILLS" means Rose Hills Holdings Corp.
136. "ROSE HILLS PUT/CALL AGREEMENT" means the Put/Call Agreement,
dated as of November 19, 1996, as amended or modified, among Blackstone, Roses
Delaware, Inc., TLGI, LGII and RHI Management Direct L.P. and any and all
agreements, documents and instruments related thereto or executed and delivered
in connection therewith.
137. "SCHEDULES" means the schedules of assets and liabilities and the
statement of financial affairs Filed by a particular Debtor, as required by
section 521 of the Bankruptcy Code and the Official Bankruptcy Forms, as the
same may have been or may be amended, modified or supplemented.
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138. "SECONDARY LIABILITY CLAIM" means a Claim that arises from a
Debtor being liable jointly, severally or secondarily liable for any
contractual, tort, guaranty or other obligation of another Debtor based on (a)
vicarious liability, (b) liabilities arising out of piercing the corporate veil
or alter ego liability or (c) other similar legal theories.
139. "SECURED CLAIM" means a Claim that is secured by a lien on
property in which an Estate has an interest or that is subject to setoff under
section 553 of the Bankruptcy Code, to the extent of the value of the Claim
holder's interest in the applicable Estate's interest in such property or to the
extent of the amount subject to setoff, as applicable, as determined pursuant to
section 506(a) and, if applicable, section 1129(b) of the Bankruptcy Code.
140. "SECURITIES LITIGATION" means any litigation, including all
actions currently consolidated in the United States District Court for the
Eastern District of Pennsylvania captioned In re The Loewen Group, Inc.
Securities Litigation, Master File No. 98-CV-6740, arising out of: (a) the
purchase or sale of the TLGI Old Common Stock or the TLGI Old Preferred Stock or
any other Old Stock of any Debtor; and (b) the purchase or sale of the MIPS.
141. "SERIES 1 NOTES" means the Series 1 Senior Notes issued by LGII
pursuant to the Indenture, dated as of March 20, 1996, between LGII, TLGI, as
guarantor, and Fleet National Bank of Connecticut, as Indenture Trustee, as
amended or modified.
142. "SERIES 2 NOTES" means the Series 2 Senior Notes issued by LGII
pursuant to the Indenture, dated as of March 20, 1996, between LGII, TLGI, as
guarantor, and Fleet National Bank of Connecticut, as Indenture Trustee, as
amended or modified.
143. "SERIES 3 NOTES" means the Series 3 Senior Notes issued by LGII
pursuant to the Indenture, dated as of October 1, 1996, between LGII, as issuer,
TLGI, as guarantor, and Fleet National Bank, as Indenture Trustee, as amended or
modified.
144. "SERIES 4 NOTES" means the Series 4 Senior Notes issued by LGII
pursuant to the Indenture, dated as of October 1, 1996, between LGII, as issuer,
TLGI, as guarantor, and Fleet National Bank, as Indenture Trustee, as amended or
modified.
145. "SERIES 5 NOTES" means the Series 5 Senior Guaranteed Notes issued
by TLGI pursuant to the Indenture, dated as of September 26, 1997, between TLGI,
as issuer, LGII, as guarantor, and The Trust Company of Bank of Montreal, as
Indenture Trustee.
146. "SERIES 6 NOTES" means the Series 6 Senior Notes issued by LGII
pursuant to the Indenture, dated as of March 28, 1998, between LGII, as issuer,
TLGI, as guarantor, and State Street Bank and Trust Company, as Indenture
Trustee, as amended or modified.
147. "SERIES 7 NOTES" means the Series 7 Senior Notes issued by LGII
pursuant to the Indenture, dated as of March 28, 1998, between LGII, as issuer,
TLGI, as guarantor, and State Street Bank and Trust Company, as Indenture
Trustee, as amended or modified.
148. "SERIES D NOTES" means the Series D Senior Guaranteed Notes issued
by TLGI pursuant to the Note Agreement, dated as of September 1, 1993, between
TLGI, as issuer, LGII, as guarantor, and the purchasers thereunder together with
the related guaranties of Neweol Finance B.V. and Loewen Group Barbados Inc. and
all related agreements, as amended or modified.
149. "SERIES E NOTES" means the Series E Senior Guaranteed Notes issued
by LGII pursuant to the Note Agreement, dated as of February 1, 1994, between
LGII, as issuer, TLGI, as guarantor, and the purchasers thereunder together with
the related guarantees of Neweol Finance B.V. and Loewen Financial Corporation
and all related agreements, as amended or modified.
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150. "SHARE PURCHASE RIGHTS" means the rights to purchase preferred
stock of Reorganized LGII, which rights will be issued pursuant to the Share
Purchase Rights Agreement.
151. "SHARE PURCHASE RIGHTS AGREEMENT" means the rights agreement
substantially in the form of Exhibit IV.K, pursuant to which the Share Purchase
Rights will be issued.
152. "STIPULATION OF AMOUNT AND NATURE OF CLAIM" means (a) a
stipulation or other agreement between the applicable Debtor or Reorganized
Debtor and a holder of a Claim or Interest or (b) an agreed order of the
Bankruptcy Court establishing the amount and nature of a Claim or Interest.
153. "SUBSIDIARY RESTRUCTURING TRANSACTIONS" means those transactions,
individually or collectively, reducing the number of LGII's direct or indirect
subsidiaries organized within each state and effecting certain other structural
changes, pursuant to Section IV.B.1 and as described in Exhibit IV.B.1.
154. "SUBSTANTIAL CONTRIBUTION CLAIMS" means the Claims identified in
Section III.F of the Plan.
155. "SUBSTANTIAL CONTRIBUTION CLAIMS AMOUNT" means an aggregate amount
of $2 million.
156. "TAX" means: (a) any net income, alternative or add-on minimum,
gross income, gross receipts, sales, use, ad valorem, value added, transfer,
franchise, profits, license, property, environmental or other tax, assessment or
charge of any kind whatsoever (together in each instance with any interest,
penalty, addition to tax or additional amount) imposed by any federal, state,
local or foreign taxing authority; or (b) any liability for payment of any
amounts of the foregoing types as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any agreement or
arrangement whereby liability for payment of any such amounts is determined by
reference to the liability of any other entity.
157. "THIRD PARTY DISBURSING AGENT" means an entity designated by
Reorganized LGII to act as a Disbursing Agent pursuant to Section VI.B.
158. "TLGI OLD COMMON STOCK" means the common shares, without par
value, of TLGI, including options, warrants or rights to acquire any such
shares.
159. "TLGI OLD PREFERRED STOCK" means the Series C Preferred Shares,
without par value, of TLGI, including options, warrants or rights to acquire any
such shares.
160. "TOLLING PARTIES" means the following entities: (a) Bankers Trust
Company; (b) Davis, Polk & Wardwell; (c) Kramer Levin Naftalis & Frankel LLP;
(d) Reid & Reige, P.C.; (e) Russell & DuMoulin; (f) Salomon Smith Barney, for
itself and as successor to Smith Barney, Inc.; (g) Skadden, Arps, Slate, Meagher
& Flom LLP; (h) State Street Bank and Trust Company; (i) Thelen Reid & Priest
LLP; and (j) UBS Warburg LLC, for itself and as successor to UBS Securities LLC.
161. "TORT CLAIM" means any Claim that has not been settled,
compromised or otherwise resolved that: (a) arises out of allegations of
personal injury, wrongful death, property damage, products liability or similar
legal theories of recovery; or (b) arises under any federal, state or local
statute, rule, regulation or ordinance governing, regulating or relating to
health, safety, hazardous substances or the environment.
162. "TRADE CLAIM" means any Unsecured Claim arising from or with
respect to the sale of goods or rendition of services prior to the Petition Date
in the ordinary course of the applicable Debtor's business, including any Claim
of an employee that is not a Priority Claim.
163. "UBS OPTION CONTRACT" means, collectively: (a) the ISDA Master
Agreement, dated as of September 25, 1997, between Union Bank of Switzerland and
LGII; (b) the letter agreement, dated September 30, 1997, between the same
parties; (c) the Company Call Option Guaranty of TLGI, dated September 30, 1997;
and (d) any agreements relating to the foregoing, in each case as amended or
modified.
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164. "UNINSURED CLAIM" means any Claim that is not an Insured Claim.
165. "UNREALIZED ASSET DISPOSITION PROCEEDS AMOUNT" means any positive
amount equal to (a) $165 million, less (b) the Realized Asset Disposition
Proceeds Amount.
166. "UNSECURED CLAIM" means any Claim that is not an Administrative
Claim, Cure Amount Claim, Priority Claim, Priority Tax Claim, Secured Claim or
Intercompany Claim.
167. "UNSECURED CLAIMS RESERVE" means the reserve holding Reserved
Shares and cash, if any, established pursuant to Section VI.D.1 for a Division
in Class 9, which reserve will be maintained in trust for holders of Allowed
Claims in such Division of Class 9 and will not constitute property of any of
the Reorganized Debtors.
168. "U.S. GAAP" means U.S. generally accepted accounting principles.
169. "VOTING DEADLINE" means the deadline for submitting Ballots to
accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code
that is specified in the Disclosure Statement, the Ballots or related
solicitation documents approved by the Bankruptcy Court.
B. RULES OF INTERPRETATION AND COMPUTATION OF TIME
1. RULES OF INTERPRETATION
For purposes of the Plan, unless otherwise provided herein:
(a) whenever from the context it is appropriate, each term, whether stated in
the singular or the plural, will include both the singular and the plural; (b)
unless otherwise provided in the Plan, any reference in the Plan to a contract,
instrument, release or other agreement or document being in a particular form or
on particular terms and conditions means that such document will be
substantially in such form or substantially on such terms and conditions; (c)
any reference in the Plan to an existing document or Exhibit Filed or to be
Filed means such document or Exhibit, as it may have been or may be amended,
modified or supplemented pursuant to the Plan or the Confirmation Order; (d) any
reference to an entity as a holder of a Claim or Interest includes that entity's
successors, assigns and affiliates; (e) all references in the Plan to Sections,
Articles and Exhibits are references to Sections, Articles and Exhibits of or to
the Plan; (f) the words "herein," "hereunder" and "hereto" refer to the Plan in
its entirety rather than to a particular portion of the Plan; (g) captions and
headings to Articles and Sections are inserted for convenience of reference only
and are not intended to be a part of or to affect the interpretation of the
Plan; (h) subject to the provisions of any contract, certificates of
incorporation, bylaws, similar constituent documents, instrument, release or
other agreement or document entered into or delivered in connection with the
Plan, the rights and obligations arising under the Plan will be governed by, and
construed and enforced in accordance with, federal law, including the Bankruptcy
Code and the Bankruptcy Rules; and (i) the rules of construction set forth in
section 102 of the Bankruptcy Code will apply.
2. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) will apply.
ARTICLE II
CLASSES OF CLAIMS AND INTERESTS
All Claims and Interests, except Administrative Claims and
Priority Tax Claims, are placed in the following Classes. In accordance with
section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority
Tax Claims, as described in Section III.A, have not been classified and thus are
excluded from the following Classes. A Claim or Interest is classified in a
particular Class only to the extent that the Claim or Interest qualifies within
the description of that Class and is classified in other Classes to the extent
that any remainder of the Claim or Interest qualifies within the description of
such other Classes.
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A. UNIMPAIRED CLASSES OF CLAIMS.
1. CLASS 1 (UNSECURED PRIORITY CLAIMS): Priority Claims against any
Debtor that are entitled to priority under section 507(a)(3), 507(a)(4) or
507(a)(6) of the Bankruptcy Code.
2. CLASS 4 (SECURED CLAIMS OTHER THAN CTA NOTE CLAIMS): Secured Claims
against any Debtor that are not classified in Class 5.
3. CLASS 16 (LOEWEN COMPANY OWNED OLD STOCK IN NON-OWNERSHIP REGULATED
DEBTORS): Interests in any Non-Ownership Regulated Debtor held by any Loewen
Company.
4. CLASS 18 (OTHER EQUITY INTERESTS): Interests in any Debtor other
than Interests in Class 12, 13, 14, 15, 16 or 17.
B. IMPAIRED CLASSES OF CLAIMS AND INTERESTS.
1. CLASS 2 (LOEWEN SUBSIDIARY DEBTOR CONVENIENCE CLAIMS): Unsecured
Claims against any Loewen Subsidiary Debtor that otherwise would be included in
Class 9, but with respect to each such Claim, the applicable Claim either (a) is
equal to or less than $10,000 or (b) is reduced to $10,000 pursuant to an
election by such holder made on the Ballot provided for voting on the Plan by
the Voting Deadline. For purposes of treatment under Class 2, multiple Claims of
a holder against a particular Debtor arising in a series of similar or related
transactions between such Debtor and the original holder of such Claims will be
treated as a single Claim and no splitting of Claims will be recognized for
purposes of distribution.
2. CLASS 3 (TLGI AND LGII CONVENIENCE CLAIMS): Unsecured Claims against
TLGI or LGII that otherwise would be included in Class 9, but with respect to
each such Claim, the applicable Claim either (a) is equal to or less than $1,000
or (b) is reduced to an aggregate of $1,000 pursuant to an election by such
holder made on the Ballot provided for voting on the Plan by the Voting
Deadline. For purposes of treatment under Class 3, multiple Claims of a holder
against a particular Debtor arising in a series of similar or related
transactions between such Debtor and the original holder of such Claims will be
treated as a single Claim and no splitting of Claims will be recognized for
purposes of distribution.
3. CLASS 5 (CTA NOTE CLAIMS): Secured and Unsecured Claims against the
Debtors that are CTA Note Claims.
4. CLASS 6 (O'KEEFE NOTE CLAIMS): Unsecured Claims against LGII,
Reimann Holdings, Inc., Wright & Ferguson Funeral Home and TLGI in respect of
the O'Keefe Note Claims.
5. CLASS 7 (MIPS DEBENTURE AND GUARANTY CLAIMS): Unsecured Claims (a)
against TLGI and LGII under or in respect of the MIPS Junior Subordinated
Debenture and the MIPS Guaranty and (b) against LGII as general partner of
LGCLP.
6. CLASS 8 (INTERCOMPANY CLAIMS): Claims of any Loewen Company against
any Debtor that are not classified in Class 7 and are not Administrative Claims.
7. CLASS 9 (UNSECURED NONPRIORITY CLAIMS): Unsecured Claims against any
Debtor (including the unsecured portion of any Claim that if fully secured would
have been classified in Class 4 and including any Claims in respect to the BMO
Letter of Credit Facility and the UBS Option Contract) that are not otherwise
classified in Class 1, 2, 3, 5, 6, 7, 8, 10 or 11.
8. CLASS 10 (MIPS SECURITIES LITIGATION CLAIMS): Unsecured Claims,
including the Securities Litigation Claims, against TLGI, LGII or LGCLP arising:
(a) from rescission of a purchase or sale of the MIPS; (b) for damages arising
from the purchase or sale of the MIPS, including Claims for damages for fraud or
misrepresentation or otherwise subject to section 510(b) of the Bankruptcy Code;
or (c) for reimbursement or contribution allowed under section 502 of the
Bankruptcy Code on account of such Claims.
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9. CLASS 11 (OTHER SECURITIES LITIGATION CLAIMS): Unsecured Claims,
including the Securities Litigation Claims, against any Debtor arising: (a) from
rescission of a purchase or sale of TLGI Old Preferred Stock, TLGI Old Common
Stock or any other equity security of any Debtor (other than the MIPS); (b) for
damages arising from the purchase or sale of any such security, including Claims
for damages for fraud or misrepresentation or otherwise subject to section
510(b) of the Bankruptcy Code; or (c) for reimbursement or contribution allowed
under section 502 of the Bankruptcy Code on account of such Claims.
10. CLASS 12 (TLGI OLD PREFERRED STOCK): Interests in TLGI on account
of the TLGI Old Preferred Stock.
11. CLASS 13 (TLGI OLD COMMON STOCK): Interests in TLGI on account of
the TLGI Old Common Stock.
12. CLASS 14 (LGII OLD STOCK): Interests in LGII on account of LGII Old
Stock.
13. CLASS 15 (THIRD PARTY OWNED OLD STOCK OF NON-OWNERSHIP REGULATED
DEBTORS): Interests in any Non-Ownership Regulated Debtor held by any person or
entity other than a Loewen Company.
14. CLASS 17 (LOEWEN GROUP CAPITAL, L.P. PARTNERSHIP INTERESTS):
Interests in LGCLP on account of the MIPS and the partnership interests in
LGCLP.
ARTICLE III
TREATMENT OF CLAIMS AND INTERESTS
A. UNCLASSIFIED CLAIMS
1. PAYMENT OF ADMINISTRATIVE CLAIMS
a. ADMINISTRATIVE CLAIMS IN GENERAL
Except as specified in this Section III.A.1, and subject to
the bar date provisions herein, unless otherwise agreed by the holder of an
Administrative Claim and the applicable Debtor or Reorganized Debtor, each
holder of an Allowed Administrative Claim will receive from Reorganized LGII or
the applicable Reorganized Debtor, in full satisfaction of its Administrative
Claim, cash equal to the allowed amount of such Administrative Claim either: (i)
on the Effective Date; or (ii) if the Administrative Claim is not allowed as of
the Effective Date, 30 days after the date on which an order allowing such
Administrative Claim becomes a Final Order or a Stipulation of Amount and Nature
of Claim is executed by Reorganized LGII or the applicable Reorganized Debtor
and the holder of the Administrative Claim.
b. STATUTORY FEES
On or before the Effective Date, Administrative Claims for
fees payable pursuant to 28 U.S.C. Section 1930, as determined by the Bankruptcy
Court at the Confirmation Hearing, will be paid in cash equal to the amount of
such Administrative Claims. All fees payable pursuant to 28 U.S.C. Section 1930
will be paid by the Reorganized Debtors in accordance therewith until the
closing of the Reorganization Cases pursuant to section 350(a) of the Bankruptcy
Code.
c. ORDINARY COURSE LIABILITIES
Allowed Administrative Claims based on liabilities incurred by
a Debtor in the ordinary course of its business (including Administrative Trade
Claims, Administrative Claims of governmental units for Taxes, including Tax
audit Claims related to Tax years commencing after the Petition Date, and
Allowed Administrative Claims arising from those contracts and leases of the
kind described in Section V.G) will be paid by the applicable
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Reorganized Debtor pursuant to the terms and conditions of the particular
transaction giving rise to such Administrative Claims, without any further
action by the holders of such Administrative Claims.
d. CLAIMS UNDER THE DIP FINANCING FACILITY
Unless otherwise agreed by the DIP Lenders pursuant to the DIP
Financing Facility, on or before the Effective Date, Allowed Administrative
Claims under or evidenced by the DIP Financing Facility will be paid in cash
equal to the amount of such Allowed Administrative Claims.
e. ADMINISTRATIVE CLAIMS OF INDENTURE TRUSTEES
Allowed Administrative Claims of each Indenture Trustee and
the CTA Trustee will be paid pursuant to the terms of Section III.E.
f. BAR DATES FOR ADMINISTRATIVE CLAIMS
i. GENERAL BAR DATE PROVISIONS
Except as otherwise provided in Sections III.A.1.f and III.E,
unless previously Filed, requests for payment of Administrative Claims must be
Filed and served on the Reorganized Debtors, pursuant to the procedures
specified in the Confirmation Order and the notice of entry of the Confirmation
Order, no later than 30 days after the Effective Date. Holders of Administrative
Claims that are required to File and serve a request for payment of such
Administrative Claims and that do not File and serve such a request by such date
will be forever barred from asserting such Administrative Claims against the
Debtors, the Reorganized Debtors or their respective property and such
Administrative Claims will be deemed discharged as of the Effective Date.
Objections to such requests must be Filed and served on the Reorganized Debtors
and the requesting party by the later of (A) 90 days after the Effective Date or
(B) 60 days after the Filing of the applicable request for payment of
Administrative Claims.
ii. BAR DATES FOR CERTAIN ADMINISTRATIVE CLAIMS
A. PROFESSIONAL COMPENSATION
Professionals or other entities asserting a Fee Claim (other
than Substantial Contribution Claims) for services rendered before the Effective
Date must File and serve on the Reorganized Debtors and such other entities who
are designated by the Bankruptcy Rules, the Confirmation Order, the Fee Order or
other order of the Bankruptcy Court an application for final allowance of such
Fee Claim no later than 60 days after the Effective Date; provided, however,
that any professional who may receive compensation or reimbursement of expenses
pursuant to the Ordinary Course Professionals Order may continue to receive such
compensation and reimbursement of expenses for services rendered before the
Effective Date, without further Bankruptcy Court review or approval, pursuant to
the Ordinary Course Professionals Order. Objections to any Fee Claim must be
Filed and served on the Reorganized Debtors and the requesting party by the
later of (1) 90 days after the Effective Date or (2) 30 days after the Filing of
the applicable request for payment of the Fee Claim. To the extent necessary,
the Confirmation Order will amend and supersede any previously entered order of
the Bankruptcy Court, including the Fee Order, regarding the payment of Fee
Claims.
B. ORDINARY COURSE LIABILITIES
Holders of Administrative Claims based on liabilities incurred
by a Debtor in the ordinary course of its business, including Administrative
Trade Claims, Administrative Claims of governmental units for Taxes (including
Tax audit Claims arising after the Petition Date) and Administrative Claims
arising from those contracts and leases of the kind described in Section V.G,
will not be required to File or serve any request for payment of such
Administrative Claims. Such Administrative Claims will be satisfied pursuant to
Section III.A.1.c.
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C. CLAIMS UNDER THE DIP FINANCING
FACILITY
Holders of Administrative Claims under or evidenced by the DIP
Financing Facility will not be required to File or serve any request for payment
of such Claims. Such Administrative Claims will be satisfied pursuant to Section
III.A.1.d.
2. PAYMENT OF PRIORITY TAX CLAIMS
a. PRIORITY TAX CLAIMS
Pursuant to section 1129(a)(9)(C) of the Bankruptcy Code,
unless otherwise agreed by the holder of a Priority Tax Claim and the applicable
Debtor or Reorganized Debtor, each holder of an Allowed Priority Tax Claim will
receive, in full satisfaction of its Priority Tax Claim, deferred cash payments
over a period not exceeding six years from the date of assessment of such
Priority Tax Claim. Payments will be made in equal annual installments of
principal, plus simple interest accruing from the Effective Date at 7% per annum
on the unpaid portion of each Allowed Priority Tax Claim (or upon such other
terms determined by the Bankruptcy Court to provide the holders of Priority Tax
Claims with deferred cash payments having a value, as of the Effective Date,
equal to the allowed amount of such Priority Tax Claims). Unless otherwise
agreed by the holder of a Priority Tax Claim and the applicable Debtor or
Reorganized Debtor, the first payment on account of an Allowed Priority Tax
Claim will be payable one year after the Effective Date or, if the Priority Tax
Claim is not allowed within one year after the Effective Date, the first
Quarterly Distribution Date after the date on which (i) an order allowing such
Priority Tax Claim becomes a Final Order or (ii) a Stipulation of Amount and
Nature of Claim is executed by the applicable Reorganized Debtor and the holder
of the Priority Tax Claim; provided, however, that the Reorganized Debtors will
have the right to pay any Allowed Priority Tax Claim, or any remaining balance
of such Priority Tax Claim, in full at any time on or after the Effective Date,
without premium or penalty.
b. OTHER PROVISIONS CONCERNING TREATMENT OF PRIORITY TAX
CLAIMS
Notwithstanding the provisions of Section III.A.2.a, the
holder of an Allowed Priority Tax Claim will not be entitled to receive any
payment on account of any penalty arising with respect to or in connection with
the Allowed Priority Tax Claim. Any such Claim or demand for any such penalty
(i) will be subject to treatment in Class 9 and (ii) the holder of an Allowed
Priority Tax Claim will not be entitled to assess or attempt to collect such
penalty from the Reorganized Debtors or their property.
B. UNIMPAIRED CLASSES OF CLAIMS
1. CLASS 1 (UNSECURED PRIORITY CLAIMS): On the Effective Date, each
holder of an Allowed Claim in Class 1 will receive cash equal to the amount of
such Claim.
2. CLASS 4 (SECURED CLAIMS OTHER THAN CTA NOTE CLAIMS): On the
Effective Date, unless otherwise agreed by a Claim holder and the applicable
Debtor or Reorganized Debtor, each holder of an Allowed Claim in Class 4 will
receive treatment on account of such Allowed Claim in the manner set forth in
Option A, B or C below, at the election of the applicable Debtor. The applicable
Debtor will be deemed to have elected Option B, except with respect to any
Allowed Claims as to which the applicable Debtor elects Option A or Option C in
a certification Filed prior to the conclusion of the Confirmation Hearing. To
the extent that the applicable Debtor elects Option C treatment for any Class 4
Claims, such Claims will be deemed impaired and to have rejected the Plan.
Option A: Each holder of an Allowed Claim in Class 4 with respect to
which the applicable Debtor elects Option A will receive cash in the
full amount of such Allowed Claim.
Option B: Each Allowed Claim in Class 4 with respect to which the
applicable Debtor elects or is deemed to have elected Option B will be
Reinstated.
<PAGE> 33
20
Option C: Each holder of an Allowed Claim in Class 4 with respect to
which the applicable Debtor elects Option C will be entitled to
receive, and the applicable Debtor or Reorganized Debtor shall release
and transfer to such holder, the collateral securing such Allowed
Claim.
3. CLASS 16 (LOEWEN COMPANY OWNED OLD STOCK IN NON-OWNERSHIP REGULATED
DEBTORS): On the Effective Date, subject to the Subsidiary Restructuring
Transactions, Allowed Interests in Class 16 will be Reinstated.
4. CLASS 18 (OTHER EQUITY INTERESTS): On the Effective Date, subject to
the Subsidiary Restructuring Transactions, Allowed Interests in Class 18 will be
Reinstated.
C. IMPAIRED CLASSES OF CLAIMS AND INTERESTS
TLGI's transfer of assets to LGII as part of the Reinvestment
Transactions will occur before the cancellation of the LGII Old Stock and the
issuance of the New Common Stock.
1. CLASS 2 (LOEWEN SUBSIDIARY DEBTOR CONVENIENCE CLAIMS): On the
Effective Date, each holder of an Allowed Claim in Class 2 against any Loewen
Subsidiary Debtor will receive cash equal to the amount of such Claim against
such Debtor (as reduced, if applicable, pursuant to an election by the holder
thereof in accordance with Section II.B.1).
2. CLASS 3 (TLGI AND LGII CONVENIENCE CLAIMS): On the Effective Date,
each holder of an Allowed Claim in Class 3 against TLGI or LGII will receive
cash equal to the amount of such Claim against such Debtor (as reduced, if
applicable, pursuant to an election by the holder thereof in accordance with
Section II.B.2).
3. CLASS 5 (CTA NOTE CLAIMS): On the Effective Date, each holder of an
Allowed Claim in Class 5 will receive in full satisfaction of all of its Allowed
CTA Note Claims: (a) a Pro Rata share of cash in an amount equal to the sum of
(i) the New Secured Debt Principal Amount, if the Exit Financing Term Loan
Closing occurs, (ii) the Realized Asset Disposition Proceeds Amount and (iii)
the Excess Cash Distribution Amount; (b) a Pro Rata share of New Five-Year
Secured Notes in an original principal amount equal to the New Secured Debt
Principal Amount, unless the Exit Financing Term Loan Closing occurs; (c) a Pro
Rata share of New Two-Year Unsecured Notes in an original principal amount equal
to the Unrealized Asset Disposition Proceeds Amount; (d) a Pro Rata share of New
Seven-Year Unsecured Notes in an original principal amount equal to the New
Seven-Year Unsecured Notes Principal Amount; and (e) a Pro Rata share of
36,616,300 shares of New Common Stock. Except as provided in Section IV.F.3, the
foregoing distributions shall be without prejudice to the rights and claims of
any Indenture Trustee or holder of a CTA Note Claim against Tolling Parties or
other third parties relating to the CTA.
4. CLASS 6 (O'KEEFE NOTE CLAIMS): On the Effective Date, each holder of
an Allowed Claim in Class 6 will receive in satisfaction of all of its Class 6
Claims against all Debtors a Pro Rata share of 620,200 shares of New Common
Stock.
5. CLASS 7 (MIPS DEBENTURE AND GUARANTY CLAIMS): No property will be
distributed to or retained by the holder of Allowed Claims in Class 7.
6. CLASS 8 (INTERCOMPANY CLAIMS): Except as provided below, all Claims
in Class 8 will be Reinstated. Notwithstanding the foregoing: (a) on the
Effective Date, each holder of an Allowed Claim in respect of the MEIPs
Debentures will receive its Pro Rata share of $10,000 in complete discharge of
any such Claim; and (b) no property will be distributed to or retained by any
Loewen Company on account of any Claim in Class 8 with respect to which,
immediately prior to the Effective Date, the obligor is LGII or a wholly owned,
direct or indirect subsidiary of LGII and the holder is a non-United States,
wholly owned, direct or indirect subsidiary of TLGI (but not TLGI); any such
Claims, after being offset by any amounts owed by the holder thereof to the
particular Debtor obligor, will be discharged on the Effective Date.
Notwithstanding this treatment of Class 8 Claims, each of the Loewen Companies
holding an Allowed Claim in Class 8 will be deemed to have accepted the Plan.
<PAGE> 34
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7. CLASS 9 (UNSECURED NONPRIORITY CLAIMS): On the Effective Date, each
holder of an Allowed Claim in Class 9 of any particular Debtor will receive,
based upon the principal amount of such holder's Allowed Claim, its Pro Rata
share of shares of New Common Stock reserved in respect of the Division in which
such Debtor is classified as follows:
<TABLE>
<CAPTION>
TOTAL SHARES RESERVED FOR EACH
DIVISION DIVISION OF ALLOWED CLASS 9 CLAIMS
-------- ----------------------------------
<S> <C>
A 215,000
B 265,100
C 1,214,100
D 302,200
E 196,700
F 268,900
G 239,400
H 62,100
</TABLE>
8. CLASS 10 (MIPS SECURITIES LITIGATION CLAIMS): No property will be
distributed to or retained by the holders of Allowed Claims in Class 10.
9. CLASS 11 (OTHER SECURITIES LITIGATION CLAIMS): No property will be
distributed to or retained by the holders of Allowed Claims in Class 11.
10. CLASS 12 (TLGI OLD PREFERRED STOCK): No property will be
distributed to holders of Allowed Interests in Class 12.
11. CLASS 13 (TLGI OLD COMMON STOCK): No property will be distributed
to holders of Allowed Interests in Class 13.
12. CLASS 14 (LGII OLD STOCK): No property will be distributed to or
retained by the holders of Allowed Interests in Class 14 and such Interests will
be canceled on the Effective Date as part of the Reinvestment Transactions.
13. CLASS 15 (THIRD PARTY OWNED OLD STOCK IN NON-OWNERSHIP REGULATED
DEBTORS): No property will be distributed to or retained by the holders of
Allowed Interests in Class 15 and such Interests will be canceled on the
Effective Date; provided, however, that with respect to any Non-Ownership
Regulated Debtor that is determined by the Bankruptcy Court to be solvent (as
defined under the Bankruptcy Code) as of the Confirmation Date, a holder of an
Allowed Interest in Class 15 in such Debtor will receive, on the Effective Date,
New Common Stock with an aggregate value, based on the reorganization value per
share as set forth in the Disclosure Statement, equal to the value of such
holder's interest in such Debtor as determined by the Bankruptcy Court.
14. CLASS 17 (LOEWEN GROUP CAPITAL, L.P. PARTNERSHIP INTERESTS):
Consistent with the treatment of holders of Allowed Claims in Class 7, no
property will be distributed to or retained by the holders of Allowed Interests
in Class 17 and such interests will be canceled on the Effective Date.
<PAGE> 35
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D. SPECIAL PROVISIONS REGARDING THE TREATMENT OF ALLOWED SECONDARY
LIABILITY CLAIMS
The classification and treatment of Allowed Claims under the
Plan take into consideration all Allowed Secondary Liability Claims. On the
Effective Date, Allowed Secondary Liability Claims will be treated as follows:
1. The Allowed Secondary Liability Claims arising from or related to
any Debtor's joint or several liability for the obligations under any (a)
Allowed Claim that is being Reinstated under the Plan or (b) Executory Contract
or Unexpired Lease that is being assumed or deemed assumed by another Debtor or
under any Executory Contract or Unexpired Lease that is being assumed by and
assigned to another Debtor or any other entity will be Reinstated.
2. Except as provided in Section III.D.1 or as otherwise specifically
provided herein, holders of Allowed Secondary Liability Claims will be entitled
to only one distribution from the primary obligor in respect of such underlying
Allowed Claim. No multiple recovery on account of any Allowed Secondary
Liability Claim will be provided or permitted.
E. SPECIAL PROVISIONS REGARDING INDENTURE TRUSTEES' CLAIMS
1. In full satisfaction of each Indenture Trustee's fee and expense
Claims for services under the respective Prepetition Indenture and the fee and
expense Claims of the CTA Trustee for services under the CTA, including such
Claims secured by the Indenture Trustee's charging lien under the Indentures and
such Claims secured by the CTA Trustee's charging lien under the CTA, each
Indenture Trustee and the CTA Trustee will receive from Reorganized LGII cash
equal to the amount of such Claims in accordance with the procedures established
in this Section III.E, and any charging lien held by such Indenture Trustee or
the CTA Trustee will be released on the Effective Date. Distributions received
by holders of Allowed Claims in Class 5 pursuant to the Plan will not be reduced
on account of the payment of the Indenture Trustees' Claims or the CTA Trustee's
Claims.
2. Within 60 days after the Effective Date, each Indenture Trustee and
the CTA Trustee will submit to Reorganized LGII appropriate documentation in
support of such fees and expenses incurred by such Indenture Trustee or CTA
Trustee through the Effective Date, whether incurred prior to or subsequent to
the Petition Date.
3. No later than 60 days after the Effective Date, the respective
Indenture Trustee or CTA Trustee will: (a) File a motion with the Bankruptcy
Court seeking approval of its fees and expenses for services incurred through
the Effective Date under the terms of the applicable Prepetition Indenture or
CTA; and (b) serve such motion on (i) Reorganized LGII and the Reorganized
Debtors and (ii) the United States Trustee. Any Indenture Trustee that does not
File such motion by such date will be forever barred from asserting such Claims
against the Debtors, the Reorganized Debtors or their respective property and
such Claims will be deemed discharged as of the Effective Date. Similarly, if
the CTA Trustee does not File such a motion by such date, the CTA Trustee will
be forever barred from asserting such Claims against the Debtors, the
Reorganized Debtors or their respective property and such Claims will be deemed
discharged as of the Effective Date. The Bankruptcy Court will approve such fees
and expenses requested in such motion to the extent that such amounts are
reasonable and appropriate under the terms of such Prepetition Indenture or CTA,
which, notwithstanding the cancellation of such Prepetition Indenture and CTA
pursuant to Section IV.I, will govern this determination. An Indenture Trustee's
or CTA Trustee's request for approval of such fees and expenses will not be
subject to the additional standards contained in section 503(b) of the
Bankruptcy Code. Promptly upon approval by the Bankruptcy Court, an Indenture
Trustee's or CTA Trustee's approved fees and expenses for the period prior to
the Effective Date will be treated as Allowed Claims and will be paid by
Reorganized LGII.
4. Any Claims of an Indenture Trustee or the CTA Trustee for fees and
expenses (a) incurred in connection with the issues surrounding the status of
certain CTA Note Claims under the CTA or (b) otherwise not incurred for services
rendered in the ordinary course under the respective Prepetition Indenture or
the CTA will not be subject to the provisions of Section III.E.1 through 3, but
rather shall be subject to the other applicable provisions of this Plan and, if
applicable, section 503(b) of the Bankruptcy Code.
<PAGE> 36
23
F. SPECIAL PROVISION REGARDING CERTAIN SUBSTANTIAL CONTRIBUTION CLAIMS
1. In full satisfaction of Claims of (a) any of the Principal CTA
Creditors, Bank of Montreal, Morgens, Waterfall, Vintiadis & Company, Inc. and
Wachovia Bank, N.A., to the extent that such entity votes to accept the Plan,
for fees and expenses incurred by such entity in connection with the issues
surrounding the status of certain CTA Note Claims under the CTA in an amount not
to exceed the Substantial Contribution Claims Amount and (b) counsel for the
Creditors' Committee for services rendered by such counsel prior to the
formation of the Creditors' Committee in an amount not to exceed $60,000, each
holder of a Substantial Contribution Claim will receive from Reorganized LGII
cash equal to the amount of such Substantial Contribution Claim in accordance
with the procedures described in this Section III.F. To the extent that the
aggregate amount of Claims set forth in Section III.F.1.a exceeds the
Substantial Contribution Claims Amount, the holders of such Claims will receive
their Pro Rata share of the Substantial Contribution Claims Amount in full
satisfaction of such Claims. Distributions received by holders of Allowed Claims
in respect of Class 5 pursuant to the Plan will not be reduced on account of the
payment of Substantial Contribution Claims.
2. Within 60 days after the Effective Date, each holder of a
Substantial Contribution Claim will submit to Reorganized LGII appropriate
documentation in support of their respective Substantial Contribution Claims for
the period subsequent to the Petition Date and prior to the date on which the
Debtors Filed the Plan and Disclosure Statement.
3. No later than 60 days after the Effective Date, each holder of a
Substantial Contribution Claim will: (a) File a motion seeking approval of its
Substantial Contribution Claim for the period subsequent to the Petition Date
and prior to the date on which the Debtors Filed the Plan and Disclosure
Statement; and (b) serve such motion on (i) Reorganized LGII and the Reorganized
Debtors and (ii) the United States Trustee. Any holder of a Substantial
Contribution Claim that does not File such motion by such date will be forever
barred from asserting such Substantial Contribution Claim against the Debtors,
the Reorganized Debtors or their respective property and such Substantial
Contribution Claim will be deemed discharged as of the Effective Date. The
Bankruptcy Court will approve such fees and expenses requested in such motion to
the extent that such amounts are reasonable and appropriate. The request of a
holder of a Substantial Contribution Claim for approval of its Substantial
Contribution Claim will not be subject to the additional standards contained in
section 503(b) of the Bankruptcy Code. Promptly upon approval by the Bankruptcy
Court, the approved Substantial Contribution Claims for the period subsequent to
the Petition Date and prior to the Effective Date will be paid by Reorganized
LGII.
ARTICLE IV
MEANS FOR IMPLEMENTATION OF THE PLAN
A. CONTINUED CORPORATE EXISTENCE AND VESTING OF ASSETS IN THE REORGANIZED
DEBTORS
Except as otherwise provided herein (and subject to the
Restructuring Transaction provisions of Section IV.B), each Debtor will, as a
Reorganized Debtor, continue to exist after the Effective Date as a separate
corporate entity, with all the powers of a corporation under applicable law and
without prejudice to any right to alter or terminate such existence (whether by
merger, dissolution or otherwise) under applicable state law. Except as
otherwise provided herein, as of the Effective Date, all property of the
respective Estates of the Debtors, and any property acquired by a Debtor or
Reorganized Debtor under the Plan, will vest in the applicable Reorganized
Debtor, free and clear of all Claims, liens, charges, other encumbrances and
Interests. On and after the Effective Date, each Reorganized Debtor may operate
its businesses and may use, acquire and dispose of property 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 or the Confirmation Order.
Without limiting the foregoing, each Reorganized Debtor may pay the charges that
it incurs on or after the Effective Date for professionals' fees, disbursements,
expenses or related support services (including fees relating to the preparation
of Professional fee applications) without application to the Bankruptcy Court.
<PAGE> 37
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B. RESTRUCTURING TRANSACTIONS
1. SUBSIDIARY RESTRUCTURING TRANSACTIONS
Commencing immediately as of and following the Effective Date,
together with certain other structural changes, the subsidiaries of Reorganized
LGII will be restructured so as to reduce the number of such subsidiaries
organized in each state in which the Debtors conduct business to the maximum
extent permissible and determined by the Debtors to be appropriate, taking into
account applicable regulatory requirements and other pertinent considerations.
The Subsidiary Restructuring Transactions will include all mergers,
consolidations, reorganizations, asset transfers and dissolutions that the
Debtors determine to be necessary or appropriate. The actions to effect the
Subsidiary Restructuring Transactions and Reinvestment Transactions may include:
(a) the execution and delivery of appropriate agreements or other documents of
merger, consolidation, restructuring, disposition, liquidation or dissolution
containing terms that are consistent with the terms of the Plan and that satisfy
the applicable requirements of applicable state law and such other terms to
which the applicable entities may agree; (b) the execution and delivery of
appropriate instruments of transfer, assignment, assumption or delegation of any
asset, property, right, liability, duty or obligation on terms consistent with
the terms of the Plan and having such other terms to which the applicable
entities may agree; (c) the filing of appropriate certificates or articles of
merger, consolidation or dissolution pursuant to applicable state law; and (d)
all other actions that the applicable entities determine to be necessary or
appropriate, including making filings or recordings that may be required by
applicable state law in connection with such transactions. A description of the
Subsidiary Restructuring Transactions as presently contemplated is attached
hereto as Exhibit IV.B.1.
2. REINVESTMENT TRANSACTIONS
Prior to the Effective Date, TLGI will cause LGII to form (a)
Delco and (b) Nafcanco. On the Effective Date, LGII will transfer its rights to
receive any proceeds of the NAFTA Claims arising under Article 1117 of NAFTA to
Delco and will transfer the membership interests of Delco to TLGI. Immediately
thereafter, TLGI will: (a) transfer to Nafcanco all right, title and interest to
any proceeds of the NAFTA Claims arising under Article 1116 of NAFTA that TLGI
receives; (b) will irrevocably delegate to Nafcanco all powers and
responsibilities of TLGI in respect of the pursuit and prosecution of the NAFTA
Claims; and (c) at that time will also cause Delco to transfer to LGII all
right, title and interest to any proceeds of the NAFTA Claims arising under
Article 1117 of NAFTA that Delco receives; all in accordance with the terms of
Exhibit I.A.29. On the Effective Date, following the CCAA Debtor Restructuring
Transactions as described on Exhibit I.A.28, pursuant to the Confirmation Order,
the CCAA Order and the terms hereof, TLGI will transfer all of its assets (other
than the NAFTA Claims and its ownership interest in Delco) to LGII, which will
become the ultimate parent entity of the Loewen Companies. The only shares of
capital stock of LGII to be outstanding immediately following the Effective Date
will be the New Common Stock. Reorganized LGII will not assume or otherwise be
liable for any obligations of or Claims against TLGI but will make the payments
provided for in Articles III and V of this Plan.
3. OBLIGATIONS OF ANY SUCCESSOR CORPORATION IN A RESTRUCTURING
TRANSACTION
The Restructuring Transactions may include one or more asset
transfers, mergers, consolidations, restructurings, dispositions, liquidations
or dissolutions, as may be determined by the Debtors or Reorganized Debtors to
be necessary or appropriate to result in substantially all of the respective
assets, properties, rights, liabilities, duties and obligations of certain of
the Debtors or Reorganized Debtors vesting in one or more surviving, resulting
or acquiring corporations. In each case in which the surviving, resulting or
acquiring corporation in any such transaction is a successor to a Debtor or
Reorganized Debtor, such surviving, resulting or acquiring corporation will
perform the obligations of the applicable Debtor or Reorganized Debtor pursuant
to the Plan to pay or otherwise satisfy the Allowed Claims against such Debtor
or Reorganized Debtor, except as provided in any contract, instrument or other
agreement or document effecting a disposition to such surviving, resulting or
acquiring corporation, which may provide that another Reorganized Debtor will
perform such obligations.
4. DISSOLUTION OF LGCLP
On or promptly following the Effective Date, LGCLP will be
dissolved.
<PAGE> 38
25
C. CORPORATE GOVERNANCE, DIRECTORS AND OFFICERS, EMPLOYMENT-RELATED
AGREEMENTS AND COMPENSATION PROGRAMS
1. CERTIFICATES OF INCORPORATION AND BYLAWS
a. REORGANIZED LGII
As of the Effective Date, the certificate of incorporation and
the bylaws of Reorganized LGII will be substantially in the forms of Exhibits
IV.C.1.a(i) and IV.C.1.a(ii), respectively. The certificate of incorporation and
the bylaws of Reorganized LGII, among other things, will prohibit the issuance
of nonvoting equity securities to the extent required by section 1123(a) of the
Bankruptcy Code and will authorize the issuance of New Common Stock and Share
Purchase Rights in amounts not less than the amounts necessary to permit the
distributions thereof required or contemplated by the Plan. After the Effective
Date, Reorganized LGII may amend and restate its certificate of incorporation or
bylaws as permitted by the General Corporation Law of the State of Delaware,
subject to the terms and conditions of such constituent documents.
b. REORGANIZED LOEWEN SUBSIDIARY DEBTORS
As of the Effective Date, the certificates of incorporation
and the bylaws or similar constituent documents of each Reorganized Subsidiary
Debtor will be substantially in the forms of Exhibits IV.C.1.b(i) and
IV.C.1.b(ii), respectively. The initial certificates of incorporation and the
bylaws or similar constituent documents of each Reorganized Subsidiary Debtor,
among other things, will prohibit the issuance of nonvoting equity securities to
the extent required by section 1123(a) of the Bankruptcy Code. After the
Effective Date or the effective time of any applicable Restructuring
Transaction, each such entity may amend and restate its certificate of
incorporation or bylaws or similar constituent documents as permitted by
applicable state law, subject to the terms and conditions of such constituent
documents.
2. DIRECTORS AND OFFICERS OF THE REORGANIZED DEBTORS
The initial board of directors and officers of each of the
Reorganized Debtors will consist of the individuals identified on Exhibit
IV.C.2. Each such director and officer will serve from and after the Effective
Date until his or her successor is duly elected or appointed and qualified or
until their earlier death, resignation or removal in accordance with the terms
of the certificates of incorporation and bylaws or similar constituent documents
of the applicable Reorganized Debtor and applicable state law. Exhibit IV.C.2
identifies the initial term for each director in accordance with the provisions
of the Reorganized Debtors' respective certificates of incorporation and bylaws.
3. NEW EMPLOYMENT, RETIREMENT, INDEMNIFICATION AND OTHER RELATED
AGREEMENTS AND INCENTIVE COMPENSATION PROGRAMS
As of the Effective Date, the Reorganized Debtors will have
authority to: (a) maintain, amend or revise existing employment, retirement,
welfare, incentive, severance, indemnification and other agreements with their
active directors, officers and employees, subject to the terms and conditions of
any such agreement; and (b) enter into new employment, retirement, welfare,
incentive, severance, indemnification and other agreements for active and
retired employees. Reorganized LGII also will have authority to make the initial
grants under the Equity Incentive Plan. Exhibit IV.C.3 provides (a) a list of
the employment agreements and plans that will continue in effect from and after
the Effective Date, (b) a description of the Equity Incentive Plan that will
take effect as of the Effective Date, (c) a list of the initial grants to be
made on the Effective Date pursuant to the Equity Incentive Plan and (d) a
description of certain change in control agreements that will take effect as of
the Effective Date. In addition, as part of the Reinvestment Transactions, TLGI
will assign to Reorganized LGII, and Reorganized LGII will assume, TLGI's
employment agreements with John S. Lacey, its Chairman, and Paul A. Houston, its
President and Chief Executive Officer. As of the Effective Date, such employment
agreements will be modified to provide that each of Mr. Lacey and Mr. Houston
will receive a grant of stock options under the Equity Incentive Plan after the
Effective Date exercisable to purchase 495,000 shares of New Common Stock. The
Disclosure Statement provides a summary and description of the Debtors'
employment, retirement, severance, indemnification and other
<PAGE> 39
26
related agreements and incentive compensation programs that are to take or
remain in effect on or as of the Effective Date.
4. CORPORATE ACTION
The following events will occur and be effective as of the
date specified in the documents effectuating the same or, if no such other date
is specified in such documents, the Effective Date and will be authorized and
approved in all respects and for all purposes without any requirement of further
action by stockholders or directors of any of the Debtors: (a) the Restructuring
Transactions; (b) the adoption of new or amended and restated certificates of
incorporation and bylaws or similar constituent documents for the Reorganized
Debtors; (c) the initial selection of directors and officers for the Reorganized
Debtors; (d) the entry into the Exit Financing Revolving Credit Facility and the
Exit Financing Term Loan; (e) the distribution of cash pursuant to the Plan; (f)
the issuance and distribution of New Five-Year Secured Notes, New Two-Year
Unsecured Notes and New Seven-Year Unsecured Notes pursuant to the Plan; (g) the
issuance and distribution of New Common Stock pursuant to the Plan; (h) the
adoption, execution, delivery and implementation of all contracts, leases,
instruments, releases and other agreements or documents related to the Plan
(including the New Registration Rights Agreement and the Share Purchase Rights
Agreement); (i) the adoption, execution and implementation of employment,
retirement and indemnification agreements, incentive compensation programs,
retirement income plans, welfare benefit plans and other employee plans and
related agreements, including the Equity Incentive Plan and the plans and
agreements listed or described on Exhibit IV.C.3; (j) the adoption, execution,
delivery and implementation of the Blackstone Settlement Documents (including
the Blackstone Purchase Agreement and the Blackstone Release) and the issuance
and delivery of the New Unsecured Subordinated Note pursuant thereto; (k) the
assignment of the NAFTA Claims; and (l) the other matters provided for under the
Plan involving the corporate structure of any Debtor or Reorganized Debtor or
corporate action to be taken by or required of any Debtor or Reorganized Debtor.
D. EXIT FINANCING REVOLVING CREDIT FACILITY AND EXIT FINANCING TERM LOAN;
OBTAINING CASH FOR PLAN DISTRIBUTIONS: TRANSFERS OF FUNDS AMONG THE
DEBTORS
On the Effective Date, the Reorganized Debtors are authorized
to execute and deliver those documents necessary or appropriate to obtain the
Exit Financing Revolving Credit Facility and the Exit Financing Term Loan. All
cash necessary for the Reorganized Debtors to make payments pursuant to the Plan
will be obtained from the Reorganized Debtors' cash balances and operations, the
Exit Financing Revolving Credit Facility or the Exit Financing Term Loan. Cash
payments to be made pursuant to the Plan will be made by Reorganized LGII;
provided, however, that the Debtors and the Reorganized Debtors will be entitled
to transfer funds between and among themselves as they determine to be necessary
or appropriate to enable Reorganized LGII to satisfy its obligations under the
Plan. Any Intercompany Claims resulting from such transfers will be accounted
for and settled in accordance with the Debtors' historical intercompany account
settlement practices.
E. IMPLEMENTATION OF THE BLACKSTONE SETTLEMENT
On the Effective Date, the Reorganized Debtors are authorized
to execute and deliver the Blackstone Settlement Documents (including the
Blackstone Purchase Agreement and the Blackstone Release) and to take any and
all actions necessary or appropriate to consummate the Blackstone Settlement.
F. PRESERVATION OF RIGHTS OF ACTION; SETTLEMENT AGREEMENTS AND RELEASES
1. PRESERVATION OF RIGHTS OF ACTION BY THE DEBTORS AND THE
REORGANIZED DEBTORS
Except as provided in the Plan or in any contract, instrument,
release or other agreement entered into or delivered in connection with the
Plan, in accordance with section 1123(b) of the Bankruptcy Code, the Reorganized
Debtors will retain and may enforce any claims, demands, rights and causes of
action that any Debtor or Estate may hold, including claims transferred to
Reorganized LGII by TLGI on the Effective Date and the Retained Claims, against
any person or entity. The Reorganized Debtors or their successors may pursue
such retained claims, demands, rights or causes of action, as appropriate, in
accordance with the best interests of the Reorganized Debtors or their
successors holding such claims, demands, rights or causes of action. Further,
the
<PAGE> 40
27
Reorganized Debtors retain their rights to File and pursue any adversary
proceedings against any trade creditor or vendor related to debit balances or
deposits owed to any Debtor. Notwithstanding the foregoing, on the Effective
Date, the Reorganized Debtors will be deemed to waive and release any claims,
rights or causes of action arising under section 547 of the Bankruptcy Code
relating to preferential transfers held by any Debtor or Reorganized Debtor
against any entity other than any Retained Claims identified on Exhibit IV.F.1.
2. GENERAL RELEASES
As of the Effective Date, in consideration for the obligations
of the Debtors and the Reorganized Debtors under the Plan and the cash, New
Five-Year Secured Notes, New Two-Year Unsecured Notes, New Seven-Year Unsecured
Notes or New Common Stock and other contracts, instruments, releases, agreements
or documents to be entered into or delivered in connection with the Plan, (a)
each holder of a Claim or Interest that votes in favor of the Plan and (b) to
the fullest extent permissible under applicable law, as such law may be extended
or interpreted subsequent to the Effective Date, each entity that has held,
holds or may hold a Claim or Interest or at any time was a creditor or
stockholder of any of the Debtors and that does not vote on the Plan or votes
against the Plan will be deemed to forever release, waive and discharge all
claims, obligations, suits, judgments, damages, demands, debts, rights, causes
of action and liabilities (other than the right to enforce the Debtors' or the
Reorganized Debtors' obligations under the Plan and the contracts, instruments,
releases, agreements and documents delivered thereunder), whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, then existing or thereafter arising in law, equity or
otherwise, that are based in whole or in part on any act, omission, transaction
or other occurrence taking place on or prior to the Effective Date in any way
relating to a Debtor, the Reorganization Cases or the Plan that such entity has,
had or may have against any Debtor or other Loewen Company, the members of the
Creditors' Committee and each of their respective present or former directors,
officers, employees, attorneys, accountants, financial advisors and agents,
acting in such capacity (which release will be in addition to the discharge of
Claims and termination of Interests provided herein and under the Confirmation
Order and the Bankruptcy Code).
3. RELEASES UNDER THE CTA
As of the Effective Date, and upon cancellation of the CTA as
provided in Section IV.I, each Indenture Trustee, the CTA Trustee and each
holder of a CTA Note Claim will be deemed to forever release, waive and
discharge each Loewen Company, including as a Pledgor under the CTA, from any
claims, demands, rights or causes of action in respect to any rights or claims
under or in respect to the CTA and CTA Note Claims, all of such claims having
been settled and discharged through the respective distributions to holders of
Claims in Class 5.
4. RELEASES IN CONNECTION WITH THE BLACKSTONE SETTLEMENT
On the Effective Date and as part of the Blackstone
Settlement, the Blackstone Release will be executed and delivered by the parties
thereto.
5. 1994 PLAN RELEASE
To the extent not otherwise settled or resolved prior to the
Effective Date, the Debtors will release each participant (other than Raymond L.
Loewen) in the 1994 Plan from any and all claims of the Debtors against such
participant arising from the financing of such participant's purchase of an
option to purchase MEIPs Debentures pursuant to the 1994 Plan, subject, however,
to the execution and delivery by such participant on or prior to the Effective
Date of a release of the Loewen Companies from any and all Claims of such
participant related to the 1994 Plan or such participant's participation
therein.
6. RESERVATION OF CERTAIN THIRD-PARTY CTA CLAIMS
Except as provided in Section IV.F.3, any claims, demands,
rights and causes of action that any Indenture Trustee or holder of a CTA Note
Claim may have against Tolling Parties or other third parties with respect to
the CTA are reserved and will not be affected by Confirmation or the occurrence
of the Effective Date.
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G. CONTINUATION OF CERTAIN EMPLOYEE BENEFIT PLANS
From and after the Effective Date, the Reorganized Debtors
intend to continue (or continue as modified or replaced) their existing employee
benefit policies, plans and agreements identified on Exhibit IV.C.3.
H. LIMITATIONS ON AMOUNTS TO BE DISTRIBUTED TO HOLDERS OF ALLOWED INSURED
CLAIMS
Distributions under the Plan to each holder of an Allowed
Insured Claim will be in accordance with the treatment provided under the Plan
for the Class or Division in which such Allowed Insured Claim is classified, but
solely to the extent that such Allowed Insured Claim is not satisfied from
proceeds payable to the holder thereof under any pertinent insurance policies
and applicable law. Nothing in this Section IV.H will constitute a waiver of any
claims, obligations, suits, judgments, damages, demands, debts, rights, causes
of action or liabilities that any entity may hold against any other entity,
including the Debtors' insurance carriers.
I. CANCELLATION AND SURRENDER OF INSTRUMENTS, SECURITIES AND OTHER
DOCUMENTATION
Except as provided in any contract, instrument or other
agreement or document entered into or delivered in connection with the Plan, on
the Effective Date and immediately following the applicable distributions made
pursuant to Article III, the CTA, the BMO Revolving Credit Facility, the MEIP
Credit Facility, the Public Notes, the Prepetition Indentures, the Series D
Notes, the Series E Notes, the Prepetition Note Agreements and the O'Keefe Notes
and any guaranties or other obligation in respect thereof will be canceled and
of no further force and effect, without any further action on the part of any
Debtor or Reorganized Debtor and any and all collateral in respect thereof will
be released. Upon such cancellation, the CTA Trustee will turn over to
Reorganized LGII or as otherwise directed by Reorganized LGII any collateral
held by the CTA Trustee under the CTA. Immediately thereafter, the LGII Old
Stock, the Old Stock of the Non-Ownership Regulated Debtors owned by any person
or entity (other than a Loewen Company) and the MIPS and other partnership
interests of LGCLP shall be deemed canceled and of no further force without any
further action on the part of any Debtor or Reorganized Debtor. The holders of
or parties to such canceled instruments, securities and other documentation will
have no rights arising from or relating to such instruments, securities and
other documentation or the cancellation thereof, except the rights provided
pursuant to the Plan; provided, however, that no distribution under the Plan
will be made to or on behalf of any holder of an Allowed Claim evidenced by such
canceled instruments or securities unless and until such instruments or
securities are received by the applicable Disbursing Agent to the extent
required in Section VI.J.
J. NEW REGISTRATION RIGHTS AGREEMENT
On the Effective Date, Reorganized LGII and certain holders of
New Common Stock that are parties thereto will execute and deliver the New
Registration Rights Agreement.
K. SHARE PURCHASE RIGHTS AGREEMENT
On the Effective Date, Reorganized LGII will execute and
deliver the Share Purchase Rights Agreement.
L. NEW TAX SHARING AGREEMENT
On the Effective Date, the Reorganized Debtors and certain of
the other Loewen Companies will execute and deliver the New Tax Sharing
Agreement.
M. RELEASE OF LIENS
Except as otherwise provided in the Plan or in any contract,
instrument, release or other agreement or document entered into or delivered in
connection with the Plan, on the Effective Date and concurrently with the
applicable distributions made pursuant to Article III, all mortgages, deeds of
trust, liens or other security interests against the property of any Estate will
be fully released and discharged, and all of the right, title and interest of
any
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holder of such mortgages, deeds of trust, liens or other security interests,
including any rights to any collateral thereunder, will revert to the applicable
Reorganized Debtor and its successors and assigns.
N. EFFECTUATING DOCUMENTS; FURTHER TRANSACTIONS; EXEMPTION FROM CERTAIN
TRANSFER TAXES
The Chairman of the Board, Chief Executive Officer, President,
Executive Vice President, Chief Financial Officer, Chief Operating Officer,
Senior Vice President or any Vice President of each Debtor or Reorganized Debtor
will be authorized to execute, deliver, file or record such contracts,
instruments, releases and other agreements or documents and take such actions as
may be necessary or appropriate to effectuate and implement the provisions of
the Plan. The Secretary or any Assistant Secretary of each Debtor or Reorganized
Debtor will be authorized to certify or attest to any of the foregoing actions.
Pursuant to section 1146(c) of the Bankruptcy Code, the following will not be
subject to any stamp tax, real estate transfer tax, vehicle transfer tax or
similar tax: (1) the issuance, transfer or exchange of New Five-Year Secured
Notes, New Two-Year Unsecured Notes, New Seven-Year Unsecured Notes or New
Common Stock; (2) the creation of any mortgage, deed of trust, lien or other
security interest; (3) the making or assignment of any lease or sublease; (4)
the execution and delivery of the Exit Financing Revolving Facility and the Exit
Financing Term Loan; (5) any Restructuring Transaction; (6) the execution and
delivery of the Blackstone Settlement Documents (including the Blackstone
Purchase Agreement and the Blackstone Release) or the issuance of the New
Unsecured Subordinated Note pursuant thereto; or (7) the making or delivery of
any deed or other instrument of transfer under, in furtherance of or in
connection with the Plan or the sale or other disposition of any Disposition
Properties, including the transfer of certain of TLGI's assets to LGII, any
merger agreements, agreements of consolidation, restructuring, disposition,
liquidation or dissolution, deeds, bills of sale or assignments executed in
connection with any Restructuring Transaction pursuant to the Plan.
ARTICLE V
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE ASSUMED OR ASSUMED AND
ASSIGNED
1. ASSUMPTION AND ASSIGNMENT GENERALLY
Except as otherwise provided in the Plan or in any contract,
instrument, release or other agreement or document entered into in connection
with the Plan, on the Effective Date, pursuant to section 365 of the Bankruptcy
Code, the applicable Debtor or Debtors will assume or assume and assign, as
indicated, each Executory Contract and Unexpired Lease including those listed on
Exhibits V.A.1 and V.A.3, but excluding those listed on Exhibit V.C; provided,
however, that the Debtors or Reorganized Debtors reserve the right, at any time
through and including 90 days after the Effective Date, to amend Exhibit V.A.1
or V.A.3 to: (a) delete any Executory Contract or Unexpired Lease listed
therein, thus providing for its rejection pursuant to Section V.C; or (b) add
any Executory Contract or Unexpired Lease thereto, thus providing for its
assumption or assumption and assignment pursuant to this Section V.A. The
Debtors or Reorganized Debtors will provide notice of any amendments to Exhibit
V.A.1 or V.A.3 to the parties to the Executory Contracts or Unexpired Leases
affected thereby and, if prior to the Effective Date, to the parties on the
then-applicable service list in the Reorganization Cases (including counsel to
the Creditors' Committee). Listing a contract or lease on Exhibit V.A.1 or V.A.3
will not constitute an admission by a Debtor or Reorganized Debtor that a Debtor
or Reorganized Debtor has any liability thereunder or that such contract or
lease is executory.
2. ASSUMPTIONS AND ASSIGNMENTS OF REAL PROPERTY EXECUTORY
CONTRACTS AND UNEXPIRED LEASES
Each (a) Real Property Executory Contract and Unexpired Lease
and (b) Executory Contract or Unexpired Lease assumed under Section V.A will
include any modifications, amendments, supplements, restatements or other
agreements made directly or indirectly by any agreement, instrument or other
document that in any manner affects such contract or lease, irrespective of
whether such agreement, instrument or other document is listed on Exhibit V.A.1
or V.A.3, unless any such modification, amendment, supplement, restatement or
other agreement is rejected pursuant to Section V.C and is listed on Exhibit
V.C.
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3. ASSIGNMENTS RELATED TO THE RESTRUCTURING TRANSACTIONS
Any Executory Contract or Unexpired Lease (including those
listed on Exhibit V.A.3 and any related agreements as described in Sections
I.A.126 and V.A.2) to be held by any Debtor or another surviving, resulting or
acquiring corporation in an applicable Restructuring Transaction will be deemed
assigned to the applicable entity, pursuant to section 365 of the Bankruptcy
Code, as of the Effective Date (irrespective of when the applicable
Restructuring Transaction is effected). Nothing in this Section V.A.3 shall
restrict, modify or otherwise limit the Debtors' or Reorganized Debtors' right
to amend Exhibit V.A.1, V.A.3 or V.C in accordance with Sections V.A.1 and V.C,
respectively.
4. APPROVAL OF ASSUMPTIONS AND ASSIGNMENTS
The Confirmation Order will constitute an order of the
Bankruptcy Court approving the assumptions and assignments described in this
Section V.A and Section V.E, pursuant to section 365 of the Bankruptcy Code, as
of the Effective Date. An order of the Bankruptcy Court entered on or prior to
the Confirmation Date will specify the procedures for providing notice to each
party whose Executory Contract or Unexpired Lease is being assumed or assumed
and assigned pursuant to the Plan of: (a) the contract or lease being assumed or
assumed and assigned; (b) the Cure Amount Claim, if any, that the applicable
Debtor believes it would be obligated to pay in connection with such assumption;
and (c) the procedures for such party to object to the assumption or assumption
and assignment of the applicable contract or lease or the amount of the proposed
Cure Amount Claim.
B. PAYMENTS RELATED TO THE ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES
To the extent that such Claims constitute monetary defaults,
the Cure Amount Claims associated with each Executory Contract and Unexpired
Lease to be assumed pursuant to the Plan will be satisfied, pursuant to section
365(b)(1) of the Bankruptcy Code, at the option of the Debtor assuming such
contract or lease or the assignee of such Debtor, if any: (1) by payment of the
Cure Amount Claim in cash on the Effective Date; (2) after the Effective Date,
as soon as practicable after the amendment of Exhibit V.A.1 or V.A.3, as
applicable, providing for the assumption or assumption and assignment of the
Executory Contract or Unexpired Lease; or (3) on such other terms as are agreed
to by the parties to such Executory Contract or Unexpired Lease. If there is a
dispute regarding (1) the amount of any Cure Amount Claim, (2) the ability of
the applicable Reorganized Debtor or any assignee to provide "adequate assurance
of future performance" (within the meaning of section 365 of the Bankruptcy
Code) under the contract or lease to be assumed or (3) any other matter
pertaining to assumption or assumption and assignment of such contract or lease,
the payment of any Cure Amount Claim required by section 365(b)(1) of the
Bankruptcy Code will be made following the entry of a Final Order resolving the
dispute and approving the assumption. For assumptions of Executory Contracts or
Unexpired Leases between Debtors, the Reorganized Debtor assuming such contract
may cure any monetary default (1) by treating such amount as either a direct or
indirect contribution to capital or distribution (as appropriate) or (2) through
an intercompany account balance in lieu of payment in cash.
C. EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED
On the Effective Date, except for an Executory Contract or
Unexpired Lease that was previously assumed, assumed and assigned or rejected by
an order of the Bankruptcy Court or that is assumed pursuant to Section V.A or
V.E (including any related agreements assumed pursuant to Sections I.A.126 and
V.A.2), each Executory Contract and Unexpired Lease listed on Exhibit V.C. that
has not previously expired or terminated pursuant to its own terms will be
rejected pursuant to section 365 of the Bankruptcy Code; provided, however, that
the Debtors or Reorganized Debtors reserve the right, at any time through and
including 90 days after the Effective Date, to amend Exhibit V.C to: (1) delete
any Executory Contract or Unexpired Lease listed therein, thus providing for its
assumption or assumption and assignment pursuant to Section V.A; or (2) add any
Executory Contract or Unexpired Lease thereto, thus providing for its rejection
pursuant to this Section V.C. The Debtors or Reorganized Debtors will provide
notice of any amendments to Exhibit V.C to the parties to the Executory
Contracts or Unexpired Leases affected thereby and, if prior to the Effective
Date, to the parties on the then-applicable service list in the Reorganization
Cases (including counsel to the Creditors' Committee). Listing a contract or
lease on Exhibit V.C will not constitute an admission by a Debtor or Reorganized
Debtor that a Debtor or Reorganized
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Debtor has any liability thereunder or that such contract or lease is executory.
The Confirmation Order will constitute an order of the Bankruptcy Court
approving such rejections, pursuant to section 365 of the Bankruptcy Code, as of
the Effective Date.
D. BAR DATE FOR REJECTION DAMAGES
Notwithstanding anything in the Bar Date Order to the
contrary, if the rejection of an Executory Contract or Unexpired Lease pursuant
to Section V.C gives rise to a Claim (including any Claims arising from those
indemnification obligations described in Section V.E.2) by the other party or
parties to such contract or lease, such Claim will be forever barred and will
not be enforceable against the Debtors, the Reorganized Debtors, their
respective successors or their respective properties unless a proof of Claim is
Filed and served on the Reorganized Debtors, pursuant to the procedures
specified in the Confirmation Order and the notice of the entry of the
Confirmation Order or another order of the Bankruptcy Court, no later than: (1)
30 days after the Effective Date; or (2) if Exhibit V.C is amended after the
Effective Date to provide for the rejection of the Executory Contract or
Unexpired Lease, 30 days after the Debtors or Reorganized Debtors serve notice
of such amendment.
E. OBLIGATIONS TO INDEMNIFY DIRECTORS, OFFICERS AND EMPLOYEES
1. The obligations of each Debtor or Reorganized Debtor to indemnify
any person who was serving as one of its directors, officers or employees as of
December 31, 2000 by reason of such person's prior or future service in such a
capacity or as a director, officer or employee of another corporation,
partnership or other legal entity, to the extent provided in the applicable
certificates of incorporation, bylaws or similar constituent documents, by
statutory law or by written agreement, policies or procedures of or with such
Debtor, will be deemed and treated as executory contracts that are assumed by
the applicable Debtor or Reorganized Debtor pursuant to the Plan and section 365
of the Bankruptcy Code as of the Effective Date, to the extent that the
provision of such indemnification is authorized by the certificate of
incorporation or similar constituent document of the applicable Reorganized
Debtor. Accordingly, such indemnification obligations will survive and be
unaffected by entry of the Confirmation Order, irrespective of whether such
indemnification is owed for an act or event occurring before or after the
Petition Date.
2. The obligations of each Debtor or Reorganized Debtor to indemnify
any person who, as of December 31, 2000, was no longer serving as a director,
officer or employee of such Debtor or Reorganized Debtor, which indemnity
obligation arose by reason of such person's prior service in any such capacity
or as a director, officer or employee of another corporation, partnership or
other legal entity, whether provided in the applicable certificates of
incorporation, bylaws or similar constituent documents, by statutory law or by
written agreement, policies or procedures of or with such Debtor, will terminate
and be discharged pursuant to section 502(e) of the Bankruptcy Code or
otherwise, as of the Effective Date; provided, however, that to the extent that
such indemnification obligations no longer give rise to contingent Claims that
can be disallowed pursuant to section 502(e) of the Bankruptcy Code, such
indemnification obligations will be deemed and treated as executory contracts
that are rejected by the applicable Debtor pursuant to the Plan and section 365
of the Bankruptcy Code, as of the Effective Date, and any Claims arising from
such indemnification obligations (including any rejection damage claims) will be
subject to the bar date provisions of Section V.D.
F. REINSTATEMENT OF ALLOWED SECONDARY LIABILITY CLAIMS ARISING FROM OR
RELATED TO EXECUTORY CONTRACTS OR UNEXPIRED LEASES ASSUMED BY THE
DEBTORS
On the Effective Date, in accordance with Section III.D.1, any
Allowed Secondary Liability Claim arising from or related to any Debtor's joint
or several liability for the obligations under or with respect to: (1) any
Executory Contract or Unexpired Lease that is being assumed or deemed assumed
pursuant to section 365 of the Bankruptcy Code by another Debtor, (2) any
Executory Contract or Unexpired Lease that is being assumed by and assigned to
another Debtor or (3) a Reinstated Claim will be Reinstated. Accordingly, such
Allowed Secondary Liability Claims will survive and be unaffected by entry of
the Confirmation Order.
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G. CONTRACTS AND LEASES ENTERED INTO AFTER THE PETITION DATE
Contracts and leases entered into after the Petition Date by
any Debtor, including any Executory Contracts and Unexpired Leases assumed by
such Debtor, will be performed by the Debtor or Reorganized Debtor liable
thereunder in the ordinary course of its business. Accordingly, such contracts
and leases (including any assumed Executory Contracts and Unexpired Leases) will
survive and remain unaffected by entry of the Confirmation Order.
H. NAFTA CONTINGENCY FEE
As of the Effective Date and as part of the Reinvestment
Transaction, TLGI will assign to Reorganized LGII, and Reorganized LGII will
assume, the contingency fee arrangements entered into by TLGI with respect to
the NAFTA Claims and approved by an order of the Bankruptcy Court entered on or
about October 12, 2000.
ARTICLE VI
PROVISIONS GOVERNING DISTRIBUTIONS
A. DISTRIBUTIONS FOR CLAIMS ALLOWED AS OF THE EFFECTIVE DATE
1. DISTRIBUTIONS TO BE MADE ON THE EFFECTIVE DATE
Except as otherwise provided in this Article VI, distributions
of cash, New Five-Year Secured Notes, New Two-Year Unsecured Notes, New
Seven-Year Unsecured Notes or New Common Stock to be made on the Effective Date
to holders of Claims that are allowed as of the Effective Date will be deemed
made on the Effective Date if made on the Effective Date or as promptly
thereafter as practicable, but in any event no later than: (a) 60 days after the
Effective Date; or (b) such later date when the applicable conditions of Section
V.B (regarding cure payments for Executory Contracts and Unexpired Leases being
assumed), Section VI.E.2 (regarding undeliverable distributions) or Section VI.J
(regarding surrender of canceled instruments and securities) are satisfied.
Distributions on account of Claims that become Allowed Claims after the
Effective Date will be made pursuant to Sections VI.H and VII.C.
2. DISTRIBUTIONS ON THE EFFECTIVE DATE IN RESPECT OF CLASS 9
UNSECURED NONPRIORITY CLAIMS
From and after the Effective Date, New Common Stock to be
distributed on account of each Division of Class 9 Claims (and any cash
generated from dividends or distributions thereon) (a) will be maintained by and
in the name of the applicable Disbursing Agent in the applicable Unsecured
Claims Reserve in accordance with Article VII and held in trust pending
distribution by the Disbursing Agent for the benefit of the holders of such
Claims in such Division, (b) will be accounted for separately and (c) will not
constitute property of any of the Reorganized Debtors. New Common Stock to be
issued and distributed on account of Class 9 Claims will be deemed issued on the
Effective Date, irrespective of the date on which it actually is distributed.
B. METHOD OF DISTRIBUTIONS TO HOLDERS OF CLAIMS
Reorganized LGII, or such Third Party Disbursing Agents as
Reorganized LGII may employ in its sole discretion, will make all distributions
of cash, New Five-Year Secured Notes, New Two-Year Unsecured Notes, New
Seven-Year Unsecured Notes or New Common Stock and other instruments or
documents required under the Plan. Each Disbursing Agent will serve without
bond, and any Disbursing Agent may employ or contract with other entities to
assist in or make the distributions required by the Plan.
C. COMPENSATION AND REIMBURSEMENT FOR SERVICES RELATED TO DISTRIBUTIONS
Each Third Party Disbursing Agent providing services related
to distributions pursuant to the Plan will receive from Reorganized LGII,
without further Bankruptcy Court approval, reasonable compensation for such
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services and reimbursement of reasonable out-of-pocket expenses incurred in
connection with such services. These payments will be made on terms agreed to
with Reorganized LGII and will not be deducted from distributions to be made
pursuant to the Plan to holders of Allowed Claims (including any distributions
of Cash Investment Yield) receiving distributions from a Third Party Disbursing
Agent.
D. PROVISIONS GOVERNING THE UNSECURED CLAIMS RESERVE
1. FUNDING OF THE UNSECURED CLAIMS RESERVE
On the Effective Date, the respective number of Reserved
Shares will be placed in the applicable Unsecured Claims Reserve by Reorganized
LGII for the benefit of holders of Allowed Claims in each Division of Class 9.
2. PROPERTY HELD IN UNSECURED CLAIMS RESERVE
a. DIVIDENDS AND DISTRIBUTIONS
Cash dividends and other distributions on account of New
Common Stock to be held in an Unsecured Claims Reserve will be transferred to
the respective Unsecured Claims Reserve concurrently with the transfer of such
dividends and other distributions to other holders of New Common Stock. Cash
held in an Unsecured Claims Reserve as a result of such dividends and other
distributions (i) will be deposited in a segregated bank account in the name of
the applicable Disbursing Agent and held in trust pending distribution by the
Disbursing Agent for the benefit of holders of the respective Division of Class
9 Claims, (ii) will be accounted for separately and (iii) will not constitute
property of the Reorganized Debtors. The Disbursing Agent will invest the cash
held in the Unsecured Claims Reserve in a manner consistent with the Reorganized
Debtors' investment and deposit guidelines. The Disbursing Agent also will place
in the Unsecured Claims Reserve the Cash Investment Yield from such investment
of cash, and distributions on account of each Allowed Claim in Class 9 will
include a Pro Rata share of the Cash Investment Yield from such investment of
cash.
b. RECOURSE
Each holder of an Allowed Claim (or a Disputed Claim that
ultimately becomes an Allowed Claim) in Class 9 will have recourse only to the
undistributed cash and New Common Stock held in the applicable Unsecured Claims
Reserve for satisfaction of the distributions to which holders of that Division
of Allowed Claims in Class 9 are entitled under the Plan, and not to any
Reorganized Debtor, its property or any assets previously distributed on account
of any Allowed Claim.
E. DELIVERY OF DISTRIBUTIONS AND UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS
1. DELIVERY OF DISTRIBUTIONS
a. GENERALLY
Except as provided in Section VI.E.1.b, distributions to
holders of Allowed Claims will be made by a Disbursing Agent (i) at the
addresses set forth on the respective proofs of Claim Filed by holders of such
Claims, (ii) at the addresses set forth in any written certification of address
change delivered to the Disbursing Agent (including pursuant to a letter of
transmittal delivered to a Disbursing Agent) after the date of Filing of any
related proof of Claim or (iii) at the addresses reflected in the applicable
Debtor's Schedules if no proof of Claim has been Filed and the Disbursing Agent
has not received a written notice of a change of address.
b. SPECIAL PROVISIONS FOR DISTRIBUTIONS TO HOLDERS OF
PUBLIC NOTE CLAIMS
Subject to the requirements of Section VI.J, distributions to
holders of Allowed Public Note Claims will be made by a Disbursing Agent to the
record holders of the Public Notes as of the Distribution Record Date, as
identified on a record holder register to be provided to the Disbursing Agent by
the applicable Indenture
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Trustee within five Business Days after the Distribution Record Date. Such
record holder register: (i) will provide the name, address and holdings of each
respective registered holder of Public Notes as of the Distribution Record Date;
and (ii) must be consistent with such Indenture Trustee's Allowed proof of
Claim. Each entry on such record holder register will be treated as an Allowed
Class 5 Claim for purposes of distributions made pursuant to this Article VI.
2. UNDELIVERABLE DISTRIBUTIONS HELD BY DISBURSING AGENTS
a. HOLDING AND INVESTMENT OF UNDELIVERABLE
DISTRIBUTIONS; UNDELIVERED NEW COMMON STOCK
i. If any distribution to a holder of an Allowed
Claim is returned to a Disbursing Agent as undeliverable, no
further distributions will be made to such holder unless and
until the applicable Disbursing Agent is notified by written
certification of such holder's then-current address. Subject
to Section VI.E.2.c, undeliverable distributions will remain
in the possession of the applicable Disbursing Agent pursuant
to this Section VI.E.2.a.i until such time as a distribution
becomes deliverable. Undeliverable cash (including dividends
or other distributions on account of undeliverable New Common
Stock) will be held in segregated bank accounts in the name of
the applicable Disbursing Agent for the benefit of the
potential claimants of such funds. Any Disbursing Agent
holding undeliverable cash will invest such cash in a manner
consistent with the Reorganized Debtors' investment and
deposit guidelines. Undeliverable New Common Stock will be
held by the applicable Disbursing Agent for the benefit of the
potential claimants of such securities.
ii. Pending the distribution of any New Common Stock,
the applicable Disbursing Agent will cause all of the New
Common Stock held by it in its capacity as Disbursing Agent to
be (A) represented in person or by proxy at each meeting of
the stockholders of Reorganized LGII, (B) voted in any
election of directors of Reorganized LGII for the nominees
recommended by the board of directors of Reorganized LGII and
(C) voted with respect to any other matter as recommended by
the board of directors of Reorganized LGII.
b. AFTER DISTRIBUTIONS BECOME DELIVERABLE
On each Quarterly Distribution Date, the applicable Disbursing
Agents will make all distributions that become deliverable to holders of Allowed
Claims during the preceding calendar quarter. Each such distribution will
include, to the extent applicable: (i) a Pro Rata share of dividends or other
distributions, if any, that were previously paid to the Disbursing Agent in
respect of any New Common Stock included in such distribution; and (ii) a Pro
Rata share of the Cash Investment Yield from the investment of any undeliverable
cash (including dividends or other distributions on undeliverable New Common
Stock) from the date that such distribution would have first been due had it
then been deliverable to the date that such distribution becomes deliverable.
c. FAILURE TO CLAIM UNDELIVERABLE DISTRIBUTIONS
Any holder of an Allowed Claim that does not assert a claim
pursuant to the Plan for an undeliverable distribution to be made by a
Disbursing Agent within two years after the later of (i) the Effective Date and
(ii) the last date on which a distribution was deliverable to such holder will
have its claim for such undeliverable distribution discharged and will be
forever barred from asserting any such claim against the Reorganized Debtors or
their respective property. In such cases with respect to Allowed Claims in any
Division of Class 9: (i) unclaimed cash and New Common Stock will be retained in
the applicable Unsecured Claims Reserve for Pro Rata redistribution to holders
of Allowed Claims in such Division, pursuant to Section VI.H.2.b; and (ii) for
purposes of this redistribution, each Allowed Claim in such Division of Class 9
for which such distributions are undeliverable will be deemed disallowed in its
entirety. In such cases with respect to Allowed Claims in any Class other than
Class 9, unclaimed distributions will become property of Reorganized LGII, free
of any restrictions thereon, and any such unclaimed distribution held by a Third
Party Disbursing Agent will be returned to Reorganized LGII. Nothing contained
in the Plan will require any Debtor, Reorganized Debtor or Disbursing Agent to
attempt to locate any holder of an Allowed Claim.
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F. DISTRIBUTION RECORD DATE
1. A Disbursing Agent will have no obligation to recognize the
transfer of, or the sale of any participation in, any Allowed Claim that occurs
after the close of business on the Distribution Record Date and will be entitled
for all purposes herein to recognize and make distributions only to those
holders of Allowed Claims that are holders of such Claims, or participants
therein, as of the close of business on the Distribution Record Date.
2. As of the close of business on the Distribution Record Date,
the respective transfer registers for the Public Notes, as maintained by the
Debtors or the Indenture Trustee, will be closed. The applicable Disbursing
Agent will have no obligation to recognize the transfer or sale of any Public
Note Claim that occurs after the close of business on the Distribution Record
Date and will be entitled for all purposes herein to recognize and make
distributions only to those holders of Public Note Claims who are holders of
such Claims as of the close of business on the Distribution Record Date.
3. Except as otherwise provided in a Final Order of the
Bankruptcy Court, the transferees of Claims that are transferred pursuant to
Bankruptcy Rule 3001 on or prior to the Distribution Record Date will be treated
as the holders of such Claims for all purposes, notwithstanding that any period
provided by Bankruptcy Rule 3001 for objecting to such transfer has not expired
by the Distribution Record Date.
G. MEANS OF CASH PAYMENTS
Except as otherwise specified herein, cash payments made
pursuant to the Plan will be in U.S. currency by checks drawn on a domestic bank
selected by the applicable Debtor or Reorganized Debtor or, at the option of the
applicable Debtor or Reorganized Debtor, by wire transfer from a domestic bank;
provided, however, that cash payments to foreign holders of Allowed Trade Claims
may be made, at the option of the applicable Debtor or Reorganized Debtor, in
such funds and by such means as are necessary or customary in a particular
foreign jurisdiction.
H. TIMING AND CALCULATION OF AMOUNTS TO BE DISTRIBUTED
1. ALLOWED CLAIMS IN CLASSES OTHER THAN CLASS 9
Subject to Section VI.A, on the Effective Date, each holder of
an Allowed Claim in a Class other than Class 9 will receive the full amount of
the distributions that the Plan provides for Allowed Claims in the applicable
Class. On each Quarterly Distribution Date, distributions also will be made,
pursuant to Section VII.C, to holders of Disputed Claims in any such Class that
were allowed during the preceding calendar quarter. Such quarterly distributions
also will be in the full amount that the Plan provides for Allowed Claims in the
applicable Class.
2. ALLOWED CLAIMS IN CLASS 9
a. INITIAL DISTRIBUTIONS
The amount of distributions to be made on the Effective Date
(subject to Section VI.A) to holders of Allowed Claims in a Division of Class 9
on account of such Claims will be made from the applicable Unsecured Claims
Reserve and will be calculated as if each Disputed Claim in such Division were
an Allowed Claim in its Face Amount. On each Quarterly Distribution Date,
distributions also will be made, pursuant to Section VII.C, to holders of
Disputed Claims in a Division of Class 9 that were allowed during the preceding
calendar quarter. Such quarterly distributions also will be calculated pursuant
to the provisions set forth in this Section VI.H.2.a.
b. ADDITIONAL DISTRIBUTIONS ON ACCOUNT OF PREVIOUSLY
ALLOWED CLAIMS
On the fourth Quarterly Distribution Date and annually
thereafter, each holder of a Claim previously allowed in a Division of Class 9
will receive an additional distribution from the applicable Unsecured Claims
Reserve on account of such Claim in an amount equal to: (i) the amount of New
Common Stock that such
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holder would have been entitled to receive pursuant to Section VI.H.2.a as if
such Claim had become an Allowed Claim on the applicable Quarterly Distribution
Date, minus (ii) the aggregate amount of New Common Stock previously distributed
on account of such Claim. Each such additional distribution also will include,
on the basis of the amount then being distributed (i) a Pro Rata share of any
dividends or other distributions made on account of the New Common Stock held in
the applicable Unsecured Claims Reserve and (ii) a Pro Rata share of the related
Cash Investment Yield from the investment of any cash dividends and other
distributions in the Unsecured Claims Reserve, from the date such cash was
deposited into the Unsecured Claims Reserve to the date that such distribution
is made.
3. DISTRIBUTIONS OF NEW COMMON STOCK
Notwithstanding any other provision of the Plan, only whole
numbers of shares of New Common Stock will be issued. When any distribution on
account of an Allowed Claim would otherwise result in the issuance of a number
of shares of New Common Stock that is not a whole number, the actual
distribution of shares of such stock will be rounded to the next higher or lower
whole number as follows: (a) fractions equal to or greater than -1/2 will be
rounded to the next higher whole number and (b) fractions less than -1/2 will be
rounded to the next lower whole number. The total number of shares of New Common
Stock to be distributed on account of Allowed Claims will be adjusted as
necessary to account for the rounding provided for in this Section VI.H.3. No
consideration will be provided in lieu of fractional shares that are rounded
down. Each share of New Common Stock distributed pursuant to the Plan will be
accompanied by one Share Purchase Right.
4. DE MINIMIS DISTRIBUTIONS
No Disbursing Agent will distribute cash to the holder of an
Allowed Claim in an impaired Class if the amount of cash to be distributed on
account of such Claim is less than $25. Any holder of an Allowed Claim on
account of which the amount of cash to be distributed is less than $25 will have
its claim for such distribution discharged and will be forever barred from
asserting any such claim against the Reorganized Debtors or their respective
property. Any cash not distributed pursuant to this Section VI.H.4 with respect
to Claims in a Class other than Class 9 will be the property of Reorganized
LGII, free of any restrictions thereon, and any such cash held by a Third Party
Disbursing Agent will be returned to Reorganized LGII. Any cash not distributed
pursuant to this Section VI.H.4 with respect to Allowed Claims in a Division of
Class 9, including dividends or other distributions made on account of New
Common Stock held in an Unsecured Claims Reserve, will be retained in the
applicable Unsecured Claims Reserve for redistribution Pro Rata to holders of
Allowed Claims in the applicable Division of Class 9, pursuant to Section
VI.H.2.b. For purposes of this redistribution, each Allowed Claim in Class 9 for
which distributions are less than $25 will have its claim for such distribution
discharged and will be forever barred from asserting any such claim against the
Unsecured Claims Reserve or otherwise.
5. COMPLIANCE WITH TAX REQUIREMENTS
a. In connection with the Plan, to the extent applicable, each
Disbursing Agent will comply with all Tax withholding and reporting
requirements imposed on it by any governmental unit, and all
distributions pursuant to the Plan will be subject to such withholding
and reporting requirements. Each Disbursing Agent will be authorized to
take any actions that may be necessary or appropriate to comply with
such withholding and reporting requirements.
b. Notwithstanding any other provision of the Plan, each
entity receiving a distribution of cash, New Five-Year Secured Notes,
New Two-Year Unsecured Notes, New Seven-Year Unsecured Notes or New
Common Stock pursuant to the Plan will have sole and exclusive
responsibility for the satisfaction and payment of any Tax obligations
imposed on it by any governmental unit on account of such distribution,
including income, withholding and other Tax obligations.
I. SETOFFS
Except with respect to claims of a Debtor or Reorganized
Debtor released pursuant to the Plan or any contract, instrument, release or
other agreement or document entered into or delivered in connection with the
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Plan, the Reorganized Debtors or, as instructed by the applicable Reorganized
Debtor, a Third Party Disbursing Agent may, pursuant to section 553 of the
Bankruptcy Code or applicable nonbankruptcy law, set off against any Allowed
Claim and the distributions to be made pursuant to the Plan on account of such
Claim (before any distribution is made on account of such Claim) the claims,
rights and causes of action of any nature that the applicable Debtor or
Reorganized Debtor may hold against the holder of such Allowed Claim; provided,
however, that neither the failure to effect a setoff nor the allowance of any
Claim hereunder will constitute a waiver or release by the applicable Debtor or
Reorganized Debtor of any claims, rights and causes of action that the Debtor or
Reorganized Debtor may possess against such a Claim holder.
J. SURRENDER OF CANCELED INSTRUMENTS OR SECURITIES
As a condition precedent to receiving any distribution
pursuant to the Plan on account of an Allowed Claim evidenced by the notes,
instruments, securities or other documentation canceled pursuant to Section
IV.I, the holder of such Claim must tender, as specified in this Section VI.J,
the applicable notes, instruments, securities or other documentation evidencing
such Claim to the applicable Disbursing Agent, together with any letter of
transmittal required by such Disbursing Agent. Pending such surrender, any
distributions pursuant to the Plan on account of any such Claim will be treated
as an undeliverable distribution pursuant to Section VI.E.2.
1. TENDER OF PUBLIC NOTES
Except as provided in Section VI.J.2 for lost, stolen,
mutilated or destroyed Public Notes, each holder of a Public Note Claim must
tender the applicable Public Notes to the applicable Disbursing Agent in
accordance with a letter of transmittal to be provided to such holders by the
Disbursing Agent as promptly as practicable following the Effective Date. The
letter of transmittal will include, among other provisions, customary provisions
with respect to the authority of the holder of the applicable Public Notes to
act and the authenticity of any signatures required thereon. All surrendered
Public Notes will be marked as canceled and delivered to the appropriate
Reorganized Debtor.
2. LOST, STOLEN, MUTILATED OR DESTROYED NOTES
Any holder of an Allowed Public Note Claim with respect to
which the underlying Public Note has been lost, stolen, mutilated or destroyed
must, in lieu of surrendering such Public Note, deliver to the applicable
Disbursing Agent (a) evidence satisfactory to the Disbursing Agent of the loss,
theft, mutilation or destruction and (b) such security or indemnity as may be
required by the Disbursing Agent to hold the Disbursing Agent and the
Reorganized Debtors, as applicable, harmless from any damages, liabilities or
costs incurred in treating such individual as a holder of a Public Note. Upon
compliance with this Section VI.J.2 by a holder of an Allowed Public Note Claim,
such holder will, for all purposes under the Plan, be deemed to have surrendered
the applicable Public Note.
3. FAILURE TO SURRENDER PUBLIC NOTES
Any holder of an Allowed Public Note Claim that fails to
surrender or be deemed to have surrendered the applicable Public Notes within
two years after the Effective Date will have its right to distributions pursuant
to the Plan on account of such Public Note Claim discharged and will be forever
barred from asserting any such Claim against the Reorganized Debtors or their
respective property. In such case, any cash, New Five-Year Secured Notes, New
Two-Year Unsecured Notes, New Seven-Year Unsecured Notes or New Common Stock
held for distribution on account of such Public Note Claim will be treated
pursuant to the provisions set forth in Section VI.E.2.c.
4. OTHER NOTES
Except as otherwise provided in this Section VI.J, holders of
Allowed Claims will be required to tender any notes evidencing such Claims or,
if not evidenced by a note, any other instrument evidencing their respective
Allowed Claims to the applicable Disbursing Agent as and when such entities
receive distributions under the Plan. If any such entity's notes or other
instruments evidencing its Allowed Claims are lost, stolen, mutilated or
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destroyed, such entity will be required, in lieu of surrendering such note or
other instrument, to deliver to the applicable Disbursing Agent (a) evidence
satisfactory to the Disbursing Agent of the loss, theft, mutilation or
destruction and (b) such security or indemnity as may be required by the
Disbursing Agent to hold the Disbursing Agent and the Reorganized Debtors, as
applicable, harmless from any damages, liabilities or costs incurred in treating
such individual as the holder of such Claims.
ARTICLE VII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. PROSECUTION OF OBJECTIONS TO CLAIMS
1. OBJECTIONS TO CLAIMS
All objections to Claims must be Filed and served on the
holders of such Claims by the Claims Objection Bar Date, and, if Filed prior to
the Effective Date, such objections will be served on the parties on the
then-applicable service list in the Reorganization Cases. If an objection has
not been Filed to a proof of Claim or a scheduled Claim by the Claims Objection
Bar Date, the Claim to which the proof of Claim or scheduled Claim relates will
be treated as an Allowed Claim if such Claim has not been allowed earlier. An
objection is deemed to have been timely Filed as to all Tort Claims, thus making
each such Claim a Disputed Claim as of the Claims Objection Bar Date. Each such
Tort Claim will remain a Disputed Claim until it becomes an Allowed Claim in
accordance with Section I.A.4.
2. AUTHORITY TO PROSECUTE OBJECTIONS
After the Confirmation Date, only the Debtors or the
Reorganized Debtors will have the authority to File, settle, compromise,
withdraw or litigate to judgment objections to Claims, including pursuant to any
alternative dispute resolution or similar procedures previously or hereafter
approved by the Bankruptcy Court. After the Effective Date, the Reorganized
Debtors may settle or compromise any Disputed Claim without approval of the
Bankruptcy Court. Notwithstanding any other provisions of the Plan, the Debtors
or Reorganized Debtors will not object to the classification of all CTA Note
Claims as Class 5 Claims; provided, however, that the Debtors or Reorganized
Debtors may object to such Claims on any other grounds.
B. TREATMENT OF DISPUTED CLAIMS
Notwithstanding any other provisions of the Plan, no payments
or distributions will be made on account of a Disputed Claim until such Claim
becomes an Allowed Claim. In lieu of distributions under the Plan to holders of
Disputed Claims in Class 9, if allowed, the applicable Unsecured Claims Reserve
will be established on the Effective Date to hold property for the benefit of
these Claim holders, as well as holders of Allowed Claims in that Division of
Class 9. Reorganized LGII will fund each Unsecured Claims Reserve with New
Common Stock, as described in Section VI.D.1.
C. DISTRIBUTIONS ON ACCOUNT OF DISPUTED CLAIMS ONCE ALLOWED
On each Quarterly Distribution Date, the applicable Disbursing
Agent will make all distributions on account of any Disputed Claim that has
become an Allowed Claim during the preceding calendar quarter. Such
distributions will be made pursuant to the provisions of the Plan governing the
applicable Class, including the incremental distribution provisions set forth in
Section VI.H.2.
D. TAX REQUIREMENTS FOR INCOME GENERATED BY UNSECURED CLAIMS RESERVE
The recovery of holders of Allowed Claims in a Division of
Class 9 consists of the treatment set forth herein and the post-Effective Date
interest on the cash portion of such Claims, if any, at a rate determined by the
Cash Investment Yield. Therefore, the Reorganized Debtors and the holders of all
Allowed Claims in a Division of Class 9 will treat cash distributions of the
Cash Investment Yield as interest for all income Tax purposes, and the
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applicable Reorganized Debtor will cause such information returns to be issued
to such holders consistent with this treatment as may be required by any
governmental unit. The applicable Reorganized Debtor will include in its Tax
returns all items of income, deduction and credit of the particular Unsecured
Claims Reserve; provided, however, that no distribution will be made to the
applicable Reorganized Debtor out of the Unsecured Claims Reserves as a result
of this inclusion. The applicable Disbursing Agent will pay, or cause to be
paid, out of the funds held in the applicable Unsecured Claims Reserve, any Tax
imposed on the Unsecured Claims Reserve (as opposed to the applicable
Reorganized Debtor or the holders of Allowed Claims in a Division of Class 9) by
any governmental unit with respect to income generated by the funds and New
Common Stock held in a Division of Unsecured Claims Reserve. The applicable
Disbursing Agent also will file or cause to be filed any Tax or information
return related to the applicable Unsecured Claims Reserve that is required by
any governmental unit.
ARTICLE VIII
SUBSTANTIVE CONSOLIDATION OF THE DEBTORS
The Debtors reserve the right to seek approval of the
Bankruptcy Court for the substantive consolidation of some or all of the Debtors
for the purpose of implementing the Plan, including for purposes of voting,
Confirmation and distributions to be made under the Plan.
ARTICLE IX
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. CONDITIONS TO CONFIRMATION
The Bankruptcy Court will not enter the Confirmation Order
unless and until the following conditions have been satisfied or duly waived
pursuant to Section IX.C:
1. The Confirmation Order shall be reasonably acceptable in form
and substance to the Debtors.
2. The Debtors shall have received a commitment for the Exit
Financing Revolving Credit Facility from the Exit Financing Facility Agent Bank
on terms and conditions satisfactory to the Debtors.
3. The Plan shall not have been amended, altered or modified from
the Plan as Filed on November 14, 2000, unless such amendment, alteration or
modification is in form and substance reasonably satisfactory to the Debtors.
4. All Exhibits to the Plan are in form and substance reasonably
satisfactory to the Debtors and the Principal CTA Creditors.
B. CONDITIONS TO THE EFFECTIVE DATE
The Effective Date will not occur and the Plan will not be
consummated unless and until each of the following conditions have been
satisfied or duly waived pursuant to Section IX.C:
1. The documents effectuating the Exit Financing Revolving Credit
Facility shall have been executed and delivered by Reorganized LGII and the Exit
Financing Facility Agent Bank.
2. The Plan shall not have been amended, altered or modified from
the Plan as Filed on November 14, 2000, unless such amendment, alteration or
modification is, and all Exhibits to the Plan are, in form and substance
reasonably satisfactory to the Debtors.
3. Each of the New Five-Year Secured Notes Indenture (if any New
Five-Year Secured Notes will be issued pursuant to the Plan), the New Two-Year
Unsecured Notes Indenture (if any New Two-Year Unsecured
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Notes will be issued pursuant to the Plan) and the New Seven-Year Unsecured
Notes Indenture shall have been qualified under the Trust Indenture Act of 1939,
as amended.
4. The New Common Stock shall have been registered under the
Exchange Act pursuant to either a Form 8-A Registration Statement or a Form 10
Registration Statement that has become effective under the Exchange Act.
5. The shares of New Common Stock to be issued pursuant to the
Plan shall have been designated as Nasdaq National Market securities by The
Nasdaq Stock Market, Inc. or authorized for listing on or accepted for quotation
through a National Securities Exchange subject to official notice of issuance.
6. The Bankruptcy Court shall have entered an order (contemplated
to be part of the Confirmation Order) approving and authorizing the Debtors and
the Reorganization Debtors to take all actions necessary or appropriate to
implement the Plan in form and substance acceptable to the Debtors, including
completion of the Restructuring Transactions and the other transactions
contemplated by the Plan and the implementation and consummation of the
contracts, instruments, releases and other agreements or documents entered into
or delivered in connection with the Plan.
7. The CCAA Order shall be reasonably acceptable in form and
substance to the Debtors and shall have been entered and become a Final Order.
C. WAIVER OF CONDITIONS TO CONFIRMATION OR THE EFFECTIVE DATE
The conditions to Confirmation set forth in Section IX.A and
the conditions to the Effective Date set forth in Section IX.B may be waived in
whole or part by the Debtors at any time without an order of the Bankruptcy
Court.
D. EFFECT OF NONOCCURRENCE OF CONDITIONS TO THE EFFECTIVE DATE
If each of the conditions to the Effective Date is not
satisfied or duly waived in accordance with Section IX.C, then upon motion by
the Debtors made before the time that each of such conditions has been satisfied
or duly waived and upon notice to such parties in interest as the Bankruptcy
Court may direct, the Confirmation Order will be vacated by the Bankruptcy
Court; provided, however, that, notwithstanding the Filing of such motion, the
Confirmation Order may not be vacated if each of the conditions to the Effective
Date is either satisfied or duly waived before the Bankruptcy Court enters an
order granting such motion. If the Confirmation Order is vacated pursuant to
this Section IX.D: (1) the Plan will be null and void in all respects, including
with respect to (a) the discharge of Claims and termination of Interests
pursuant to section 1141 of the Bankruptcy Code and (b) the assumptions,
assignments or rejections of Executory Contracts and Unexpired Leases pursuant
to Sections V.A and V.C; and (2) nothing contained in the Plan will (a)
constitute a waiver or release of any claims by or against, or any Interest in,
the Debtors or (b) prejudice in any manner the rights of the Debtors or any
other party in interest.
ARTICLE X
CRAMDOWN
The Debtors request Confirmation under section 1129(b) of the
Bankruptcy Code with respect to: (a) any impaired Class or Division of Class 9
that does not accept the Plan pursuant to section 1126 of the Bankruptcy Code;
and (b) any Class that is deemed to have not accepted the Plan pursuant to
section 1126(g) of the Bankruptcy Code. The Debtors reserve the right to modify
the Plan to the extent, if any, that Confirmation pursuant to section 1129(b) of
the Bankruptcy Code requires modification.
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ARTICLE XI
DISCHARGE, TERMINATION, INJUNCTION
AND SUBORDINATION RIGHTS
A. DISCHARGE OF CLAIMS AND TERMINATION OF INTERESTS
1. Except as provided in the Plan or in the Confirmation Order,
the rights afforded under the Plan and the treatment of Claims and Interests
under the Plan will be in exchange for and in complete satisfaction, discharge
and release of all Claims and termination of all Interests arising on or before
the Effective Date, including any interest accrued on Claims from the Petition
Date. Except as provided in the Plan or in the Confirmation Order, Confirmation
will, as of the Effective Date: (a) discharge the Debtors from all Claims or
other debts that arose on or before the Effective Date, and all debts of the
kind specified in section 502(g), 502(h) or 502(i) of the Bankruptcy Code,
whether or not (i) a proof of Claim based on such debt is Filed or deemed Filed
pursuant to section 501 of the Bankruptcy Code, (ii) a Claim based on such debt
is allowed pursuant to section 502 of the Bankruptcy Code or (iii) the holder of
a Claim based on such debt has accepted the Plan; and (b) terminate all
Interests and other rights of equity security holders in the Debtors.
2. In accordance with the foregoing, except as provided in the
Plan or the Confirmation Order, as of the Effective Date, the Confirmation Order
will be a judicial determination of a discharge of all Claims and other debts
and liabilities against the Debtors and a termination of all Interests and other
rights of equity security holders in the Debtors, pursuant to sections 524 and
1141 of the Bankruptcy Code, and such discharge will void any judgment obtained
against a Debtor at any time, to the extent that such judgment relates to a
discharged Claim or terminated Interest.
B. INJUNCTIONS
1. Except as provided in the Plan or the Confirmation Order, as
of the Effective Date, all entities that have held, currently hold or may hold a
Claim or other debt or liability that is discharged or an Interest or other
right of an equity security holder that is terminated pursuant to the terms of
the Plan will be permanently enjoined from taking any of the following actions
on account of any such discharged Claims, debts or liabilities or terminated
Interests or rights: (a) commencing or continuing in any manner any action or
other proceeding against the Debtors, the Reorganized Debtors or their
respective property, other than to enforce any right pursuant to the Plan to a
distribution; (b) enforcing, attaching, collecting or recovering in any manner
any judgment, award, decree or order against the Debtors, the Reorganized
Debtors or their respective property, other than as permitted pursuant to (a)
above; (c) creating, perfecting or enforcing any lien or encumbrance against the
Debtors, the Reorganized Debtors or their respective property; (d) asserting a
setoff, right of subrogation or recoupment of any kind against any debt,
liability or obligation due to the Debtors or the Reorganized Debtors; and (e)
commencing or continuing any action, in any manner, in any place that does not
comply with or is inconsistent with the provisions of the Plan.
2. As of the Effective Date, all entities that have held,
currently hold or may hold any claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action or liabilities that are released
pursuant to the Plan, including pursuant to Section IV.F, will be permanently
enjoined from taking any of the following actions against any released entity or
its property on account of such released claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action or liabilities: (a) commencing
or continuing in any manner any action or other proceeding; (b) enforcing,
attaching, collecting or recovering in any manner any judgment, award, decree or
order; (c) creating, perfecting or enforcing any lien or encumbrance; (d)
asserting a setoff, right of subrogation or recoupment of any kind against any
debt, liability or obligation due to any released entity; and (e) commencing or
continuing any action, in any manner, in any place that does not comply with or
is inconsistent with the provisions of the Plan.
3. By accepting distributions pursuant to the Plan, each holder
of an Allowed Claim receiving distributions pursuant to the Plan will be deemed
to have specifically consented to the injunctions set forth in this Section
XI.B.
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C. TERMINATION OF SUBORDINATION RIGHTS AND SETTLEMENT OF RELATED CLAIMS
AND CONTROVERSIES
1. The classification and manner of satisfying all Claims and
Interests under the Plan take into consideration all subordination rights,
whether arising under general principles of equitable subordination, contract,
section 510(c) of the Bankruptcy Code or otherwise, that a holder of a Claim or
Interest may have against other Claim or Interest holders with respect to any
distribution made pursuant to the Plan. All subordination rights that a holder
of a Claim may have with respect to any distribution to be made pursuant to the
Plan will be discharged and terminated, and all actions related to the
enforcement of such subordination rights will be permanently enjoined.
Accordingly, distributions pursuant to the Plan to holders of Allowed Claims
will not be subject to payment to a beneficiary of such terminated subordination
rights or to levy, garnishment, attachment or other legal process by a
beneficiary of such terminated subordination rights.
2. Pursuant to Bankruptcy Rule 9019 and in consideration for the
distributions and other benefits provided under the Plan, the provisions of the
Plan will constitute a good faith compromise and settlement of all claims or
controversies relating to the subordination rights that a holder of a Claim may
have with respect to any Allowed Claim or any distribution to be made pursuant
to the Plan on account of any Allowed Claim. The entry of the Confirmation Order
will constitute the Bankruptcy Court's approval, as of the Effective Date, of
the compromise or settlement of all such claims or controversies and the
Bankruptcy Court's finding that such compromise or settlement is in the best
interests of the Debtors, the Reorganized Debtors and their respective property
and Claim and Interest holders and is fair, equitable and reasonable.
ARTICLE XII
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the
occurrence of the Effective Date, the Bankruptcy Court will retain such
jurisdiction over the Reorganization Cases after the Effective Date as is
legally permissible, including jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim or Interest,
including: (a) the resolution of any request for payment of any Administrative
Claim; (b) the resolution of any objections to the allowance, priority or
classification of Claims or Interests; (c) the approval of the Indenture
Trustees' or CTA Trustee's fees and expenses pursuant to Section III.E; and (d)
the approval of the Substantial Contribution Claims pursuant to Section III.F;
2. Grant or deny any applications for allowance of compensation
or reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan for periods ending on or before the Effective Date;
3. Resolve any matters related to the assumption, assumption and
assignment or rejection of any Executory Contract or Unexpired Lease to which
any Debtor is a party or with respect to which any Debtor or Reorganized Debtor
may be liable and to hear, determine and, if necessary, liquidate any Claims
arising therefrom, including any Cure Amount Claims;
4. Resolve any matters related to the Disposition Properties;
5. Ensure that distributions to holders of Allowed Claims are
accomplished pursuant to the provisions of the Plan;
6. Decide or resolve any motions, adversary proceedings,
contested or litigated matters and any other matters, including the Retained
Claims, and the Recovery Actions to the extent not released hereunder, and grant
or deny any applications involving the Debtors that may be pending on the
Effective Date or brought thereafter;
7. Enter such orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and all contracts,
instruments, releases and other agreements or documents entered into or
delivered in connection with the Plan, the Disclosure Statement or the
Confirmation Order;
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8. Resolve any cases, controversies, suits or disputes that may
arise in connection with the Recovery Actions or the consummation,
interpretation or enforcement of the Plan or any contract, instrument, release
or other agreement or document that is entered into or delivered pursuant to the
Plan or any entity's rights arising from or obligations incurred in connection
with the Plan or such documents;
9. Modify the Plan before or after the Effective Date pursuant to
section 1127 of the Bankruptcy Code; modify the Disclosure Statement, the
Confirmation Order or any contract, instrument, release or other agreement or
document entered into or delivered in connection with the Plan, the Disclosure
Statement or the Confirmation Order; or remedy any defect or omission or
reconcile any inconsistency in any Bankruptcy Court order, the Plan, the
Disclosure Statement, the Confirmation Order or any contract, instrument,
release or other agreement or document entered into, delivered or created in
connection with the Plan, the Disclosure Statement or the Confirmation Order, in
such manner as may be necessary or appropriate to consummate the Plan;
10. Issue injunctions, enforce the injunctions contained in the
Plan and the Confirmation Order, enter and implement other orders or take such
other actions as may be necessary or appropriate to restrain interference by any
entity with consummation, implementation or enforcement of the Plan or the
Confirmation Order;
11. Enter and implement such orders as are necessary or
appropriate if the Confirmation Order is for any reason or in any respect
modified, stayed, reversed, revoked or vacated or distributions pursuant to the
Plan are enjoined or stayed;
12. Determine any other matters that may arise in connection with
or relate to the Plan, the Disclosure Statement, the Confirmation Order or any
contract, instrument, release or other agreement or document entered into or
delivered in connection with the Plan, the Disclosure Statement or the
Confirmation Order;
13. Enter a final decree closing the Reorganization Cases; and
14. Determine matters concerning state, local and federal Taxes in
accordance with sections 346, 505 and 1146 of the Bankruptcy Code, including any
Disputed Claims for Taxes.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
A. DISSOLUTION OF THE CREDITORS' COMMITTEE
On the Effective Date, the Creditors' Committee will dissolve
and the members of the Creditors' Committee will be released and discharged from
all duties and obligations arising from or related to the Reorganization Cases.
The Professionals retained by the Creditors' Committee and the members thereof
will not be entitled to assert any Fee Claim for any services rendered or
expenses incurred after the Effective Date, except for services rendered and
expenses incurred in connection with any applications for allowance of
compensation and reimbursement of expenses pending on the Effective Date or
Filed and served after the Effective Date pursuant to Section III.A.1.f.ii.A and
in connection with any appeal of the Confirmation Order.
B. LIMITATION OF LIABILITY
The Debtors, the Reorganized Debtors and their respective
directors, officers, employees and professionals, acting in such capacity, and
the Creditors' Committee and its members and professionals will neither have nor
incur any liability to any entity for any act taken or omitted to be taken in
connection with or related to the formulation, preparation, dissemination,
implementation, Confirmation or consummation of the Plan, the Disclosure
Statement or any contract, instrument, release or other agreement or document
created or entered into, or any other act taken or omitted to be taken, in
connection with the Plan; provided, however, that the foregoing provisions of
this Section XIII.B will have no effect on: (1) the liability of any entity that
would otherwise result from the failure to perform or pay any obligation or
liability under the Plan or any contract, instrument, release or other agreement
or document to be entered into or delivered in connection with the Plan; or (2)
the liability of any entity that would
<PAGE> 57
44
otherwise result from any such act or omission to the extent that such act or
omission is determined in a Final Order to have constituted gross negligence or
willful misconduct.
C. MODIFICATION OF THE PLAN
Subject to the restrictions on modifications set forth in
section 1127 of the Bankruptcy Code, the Debtors or the Reorganized Debtors, as
applicable, reserve the right to alter, amend or modify the Plan before its
substantial consummation.
D. REVOCATION OF THE PLAN
The Debtors reserve the right to revoke or withdraw the Plan
as to any or all of the Debtors prior to the Confirmation Date. If the Debtors
revoke or withdraw the Plan as to any or all of the Debtors, or if Confirmation
as to any or all of the Debtors does not occur, then, with respect to such
Debtors, the Plan will be null and void in all respects, and nothing contained
in the Plan will: (1) constitute a waiver or release of any claims by or
against, or any Interests in, such Debtors; or (2) prejudice in any manner the
rights of any Debtors or any other party.
E. SEVERABILITY OF PLAN PROVISIONS
If, prior to Confirmation, any term or provision of the Plan
is held by the Bankruptcy Court to be invalid, void or unenforceable, the
Bankruptcy Court will have the power to alter and interpret such term or
provision to make it valid or enforceable to the maximum extent practicable,
consistent with the original purpose of the term or provision held to be
invalid, void or unenforceable, and such term or provision then will be
applicable as altered or interpreted; provided, however, that any such
alteration or interpretation must be in form and substance acceptable to the
Debtors. Notwithstanding any such holding, alteration or interpretation, the
remainder of the terms and provisions of the Plan will remain in full force and
effect and will in no way be affected, impaired or invalidated by such holding,
alteration or interpretation. The Confirmation Order will constitute a judicial
determination and will provide that each term and provision of the Plan, as it
may have been altered or interpreted in accordance with the foregoing, is valid
and enforceable pursuant to its terms.
F. SUCCESSORS AND ASSIGNS
The rights, benefits and obligations of any entity named or
referred to in the Plan will be binding on, and will inure to the benefit of,
any heir, executor, administrator, successor or assign of such entity.
G. SERVICE OF CERTAIN PLAN EXHIBITS AND DISCLOSURE STATEMENT EXHIBITS
Because the Exhibits to the Plan are voluminous, the Exhibits
are not being served with copies of the Plan and the Disclosure Statement. Any
party in interest may review the Plan Exhibits during normal business hours
(9:00 a.m. to 4:30 p.m., local time) in the Document Reviewing Centers.
H. SERVICE OF DOCUMENTS
Any pleading, notice or other document required by the Plan or
Confirmation Order to be served on or delivered to the Debtors, the Reorganized
Debtors or the Creditors' Committee must be sent by overnight delivery service,
facsimile transmission, courier service or messenger to:
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45
1. The Debtors and the Reorganized Debtors:
Bradley D. Stam, Esq.
Senior Vice President -- Legal and Asset Management
THE LOEWEN GROUP INC.
4126 Norland Avenue
Burnaby, British Columbia
Canada V5G 3S8
Fax: (604) 473-7308
- and -
Richard M. Cieri, Esq.
Michelle M. Morgan, Esq.
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Fax: (216) 579-0212
Henry L. Gompf, Esq.
Gregory M. Gordon, Esq.
JONES, DAY, REAVIS & POGUE
2727 North Harwood
Dallas, Texas 75201
Fax: (214) 969-5100
(Counsel to the Debtors and Reorganized Debtors)
2. The Creditors' Committee:
Evan D. Flaschen, Esq.
BINGHAM DANA LLP
One State Street
Hartford, Connecticut 06103
Fax: (860) 240-2800
(Counsel to the Creditors' Committee)
3. The United States Trustee:
Patricia A. Staiano, Esq.
OFFICE OF THE UNITED STATES TRUSTEE
950 Curtis Center West
601 Walnut Street
Philadelphia, Pennsylvania 19106
Fax: (215) 597-5795
<PAGE> 59
46
Dated: November 14, 2000 Respectfully submitted,
LOEWEN GROUP INTERNATIONAL, INC.
By: /s/ Bradley D. Stam
----------------------------------------
Name: Bradley D. Stam
Title: Senior Vice President, Legal & Asset
Management
THE LOEWEN GROUP INC., on its own behalf and
on behalf of each Loewen Subsidiary Debtors
By: /s/ Bradley D. Stam
----------------------------------------
Name: Bradley D. Stam
Title: Senior Vice President, Legal & Asset
Management
COUNSEL:
RICHARD M. CIERI (OH 0032464)
MICHELLE M. MORGAN (OH 0064833)
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
HENRY L. GOMPF (TX 08116400)
GREGORY M. GORDON (TX 08435300)
JONES, DAY, REAVIS & POGUE
2727 North Harwood
Dallas, Texas 75201
(214) 220-3939
ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION
