<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: (Date of Earliest Event Reported): September 24, 1999
(September 22, 1999)
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CRIIMI MAE INC.
(Exact name of registrant as specified in its charter)
Maryland 1-10360 52-1622022
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
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11200 Rockville Pike
Rockville, Maryland 20852
(Address of principal executive offices, including zip code, of Registrant)
(301) 816-2300
(Registrant's telephone number, including area code)
<PAGE>2
Item 5. Other Events
Attached as exhibits to this Current Report on Form 8-K are (1) a Joint
Plan of Reorganization filed by the Company and its affiliates CRIIMI MAE
Holdings II, L.P. and CRIIMI MAE Management, Inc. with the United States
Bankruptcy Court, District of Maryland, Greenbelt Division on September 22, 1999
and (2) a press release issued by the Company on September 23, 1999 announcing
the filing of the Joint Plan of Reorganization. Each of the above referenced
documents is hereby incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
The following exhibits are filed as a part of this Current Report on Form 8-K:
(c) Exhibit
2 Joint Plan of Reorganization filed by CRIIMI MAE Inc. and its
affiliates CRIIMI MAE Holdings II, L.P. and CRIIMI MAE Management,
Inc. on September 22, 1999 (which contains as an exhibit a Stock
Purchase Agreement between CRIIMI MAE Inc. and AP-CM, L.L.C. dated
September 9, 1999, including a draft of Articles Supplementary to the
Articles of Incorporation of CRIIMI MAE Inc. attached as an exhibit to
the Stock Purchase Agreement, which documents were previously filed as
exhibits to a Current Report on Form 8-K filed with the Securities and
Exchange Commission on September 16, 1999 and incorporated by
reference herein).
99 Press Release issued by CRIIMI MAE Inc. on September 23, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CRIIMI MAE Inc.
By: /s/ William B. Dockser
----------------------
William B. Dockser
Chairman of the Board
Dated: September 24, 1999
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EXHIBIT INDEX
Exhibit
No. Description
- --------------------------------------------------------------------------------
*2 Joint Plan of Reorganization filed by CRIIMI MAE Inc. and its
affiliates CRIIMI MAE Holdings II, L.P. and CRIIMI MAE Management, Inc.
on September 22, 1999 (including a Stock Purchase Agreement between
CRIIMI MAE Inc. and AP-CM, L.L.C. dated September 9, 1999, including a
draft Articles Supplementary to the Articles of Incorporation of
CRIIMI MAE Inc. attached as an exhibit to the Stock Purchase Agreement,
which were filed on a Current Report on Form 8-K with the Securities
and Exchange Commision on September 16, 1999 and are incorporated by
reference herein).
*99 Press Release issued by CRIIMI MAE Inc. on September 23, 1999.
*Filed herewith.
<PAGE>5
EXHIBIT 2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MARYLAND
Greenbelt Division
)
)
In re )
)
CRIIMI MAE Inc., et al., )Chapter 11
)Case Nos. 98-2-3115(DK)
Debtors. )through 98-2-3117(DK)
)(Jointly Administered)
)
DEBTORS' JOINT PLAN OF REORGANIZATION
VENABLE, BAETJER AND HOWARD, LLP AKIN, GUMP, STRAUSS, HAUER
Richard L. Wasserman & FELD, L.L.P.
1800 Mercantile Bank and Trust Building Stanley J. Samorajczyk, P.C.
Two Hopkins Plaza Michael S. Stamer
Baltimore, Maryland 21201 1333 New Hampshire Avenue, N.W.
(410) 244-7400 Washington, D.C. 20036
(202) 887-4000
Co-Counsel to CRIIMI MAE Inc.
and CRIIMI MAE Holdings II, L.P.
SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A.
Morton A. Faller
11921 Rockville Pike
Third Floor
Rockville, MD 20852-2753
(301) 231-0928
Counsel to CRIIMI MAE Management, Inc.
Dated: Rockville, Maryland
September 21, 1999
<PAGE>6
I. INTRODUCTION
CRIIMI MAE Inc. (defined herein as "CMI") and its affiliates CRIIMI MAE
Holdings II L.P. (defined herein as "Holdings") and CRIIMI MAE Management, Inc.
(defined herein as "CMM", collectively with CMI and Holdings, as "Debtors")
hereby propose the following Joint Plan of Reorganization (defined herein as the
"Plan") for the resolution of the Debtors' outstanding creditor claims and
equity interests and request confirmation of the Plan pursuant to Section 1129
of the Bankruptcy Code.
All Holders of Claims and Interests are encouraged to read the Plan and the
accompanying Disclosure Statement.
No materials, other than the accompanying Disclosure Statement and any
exhibits and schedules attached thereto or referenced therein, have been
approved by the Debtors for use in soliciting acceptances or rejections of the
Plan.
II. DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION
A. Definitions.
In addition to such other terms as are defined in other sections of the
Plan, the following terms (which appear in the Plan as capitalized terms) have
the following meanings as used in the Plan:
1. "ADMINISTRATIVE CLAIM" means a Claim for payment of an administrative
expense of a kind specified in Section 503(b) of the Bankruptcy Code and
referred to in Section 507 (a) (1) of the Bankruptcy Code, including, without
limitation, the actual and necessary costs and expenses incurred after the
commencement of the Chapter 11 Cases of preserving the estate or operating
the business of any of the Debtors (including wages, salaries and commissions
for services), loans and advances to any of the Debtors made after the Petition
Date, compensation for legal and other services and reimbursement of expenses
awarded or allowed under Section 330(a) or 331 of the Bankruptcy Code, and all
fees and charges against the estate under Section 1930 of title 28, United
States Code.
2. "ALLOWED CLAIM" or "ALLOWED INTEREST" means a Claim against or
Interest in the Debtors:
(1) to the extent that a proof of such Claim or Interest was timely
Filed and served upon the Debtors and no objection to the Claim or
Interest, or motion to estimate the Claim or Interest for purposes of
allowance, is Filed within the time fixed by the Bankruptcy Court for such
objections; or
(2) to the extent that a proof of such Claim or Interest is deemed
Filed under applicable law or pursuant to a Final Order of the Bankruptcy
Court and no objection to the Claim or Interest is Filed within the time
fixed by the Bankruptcy Court for such objections; or
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(3) that is allowed pursuant to this Plan; or
(4) to the extent that a proof of such Claim or Interest is allowed
pursuant to the following sentence of this definition.
If an objection to a proof of Claim or Interest is filed within the time
fixed by the Bankruptcy Court, the Claim or Interest shall be Allowed to the
extent of:
(1) any amount of such Claim or Interest to which no objection was
Filed; and
(2) any amount otherwise authorized by Final Order or the Plan.
"ALLOWED ADMINISTRATIVE CLAIM," "ALLOWED PRIORITY TAX CLAIM,"
"ALLOWED SECURED CLAIM" and "ALLOWED UNSECURED CLAIM" have correlative meanings.
3. "ALLOWED CLASS ... CLAIM" means an Allowed Claim in the particular Class
described.
4. "ALLOWED CLASS ... INTEREST" means an Allowed Interest in the particular
Class described.
5. "ARTICLES SUPPLEMENTARY" means the Articles Supplementary to the
Articles of Incorporation of CMI attached as an Exhibit to the Stock Purchase
Agreement.
6. "BANKRUPTCY CODE" means title 11 of the United States Code, as now in
effect or hereafter amended if such amendments are made applicable to the
Reorganization Cases.
7. "BANKRUPTCY COURT" means the United States Bankruptcy Court for the
District of Maryland, at Greenbelt, or such other court or adjunct thereof that
exercises jurisdiction over the Reorganization Cases.
8. "BANKRUPTCY RULES" means the Federal Rules of Bankruptcy Procedure, as
applicable from time to time in the Reorganization Cases.
9. "BUSINESS DAY" means any day other than a Saturday, a Sunday or a "legal
holiday" (as defined in Bankruptcy Rule 9006(a)).
10. "BUYER" means AP-CM, L.L.C., a Delaware limited liability company.
11. "CASH" means lawful currency of the United States, a certified check, a
cashier's check or a wire transfer of immediately available funds from any
source, or a check drawn on a domestic bank from Reorganized CMI, Reorganized
CMM, Reorganized Holdings or other Person making any distribution under the
Plan.
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12. "CLAIM" means a claim against any of the Debtors, whether or not
asserted or allowed, as defined in Section 101(5) of the Bankruptcy Code,
including, without limitation, Administrative Claims.
13. "CLASS" means a class of Claims or Interests designated pursuant to the
Plan.
14. "CLEARING SYSTEMS" shall mean DTC or any similar clearing system.
15. "CLERK" means the Clerk of the Bankruptcy Court.
16. "CMBS SALE PORTFOLIO" means those commercial mortgage-backed securities
and any other assets identified on a schedule to be provided to the Bankruptcy
Court at or before the Confirmation Hearing setting forth those commercial
mortgage-backed securities and other assets to be sold as part of funding this
Plan.
17. "CMI" means CRIIMI MAE Inc., a Maryland corporation.
18. "CMM" means CRIIMI MAE Management, Inc., a Maryland corporation and
wholly-owned subsidiary of CMI.
19. "CMSLP" means CRIIMI MAE Services Limited Partnership, a Maryland
limited partnership.
20. "COMMITTEES" means any statutory committees of creditors or equity
interest holders of the Debtors appointed by the United States Trustee pursuant
to Section 1102 of the Bankruptcy Code.
21. "CONFIRMATION" means the entry by the Bankruptcy Court of the
Confirmation Order.
22. "CONFIRMATION DATE" means the date on which the Clerk enters the
Confirmation Order on the Docket.
23. "CONFIRMATION HEARING" means the hearing on confirmation of the Plan.
24. "CONFIRMATION ORDER" means the Order of the Bankruptcy Court confirming
the Plan under Section 1129 of the Bankruptcy Code.
25. "CONTRACT REJECTION SCHEDULE" shall have the meaning ascribed to such
term in Section VII.C of the Plan.
26. "CREDITORS' COMMITTEE" means the Official Committee of Unsecured
Creditors of CMI and/or CMM appointed by the United States Trustee, as the case
may be.
27. "DEBTOR RELEASEES" shall have the meaning ascribed to such term in
Section XI.C of the Plan.
28. "DEBTORS" means CMI, Holdings and CMM, collectively and individually as
appropriate from the context, as debtors and debtors in possession.
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29. "DEBTORS IN POSSESSION" means the Debtors, when acting in the capacity
of representatives of the Estates in the Reorganization Cases.
30. "DISBURSING AGENT" means, collectively, one or more Persons responsible
for making distributions under the Plan. The Reorganized Debtors or such
Person(s) as the Debtors may employ in their sole discretion will serve as
Disbursing Agent.
31. "DISCLOSURE STATEMENT" means the disclosure statement pursuant to
Section 1125 or Section 1126(b) of the Bankruptcy Code with respect to the Plan
(and all exhibits and schedules annexed thereto or referred to therein), as it
may be amended or supplemented from time to time.
32. "DISPUTED CLAIM" means a Claim, to the extent such Claim is not an
Allowed Claim.
33. "DISPUTED INTEREST" means an Interest to the extent such Interest is
not an Allowed Interest.
34. "DISTRIBUTION RECORD DATE" means the date or dates fixed by the
Bankruptcy Court as the record date for determining the Holders of Old Senior
Notes, Old Series B Preferred Stock, Old Series C Preferred Stock, Old Series D
Preferred Stock and Old CMI Common Stock, respectively, who are entitled to
receive distributions under this Plan and, if no such date is fixed, means the
Confirmation Date.
35. "DOCKET" means the docket or dockets in the Reorganization Cases
maintained by the Clerk.
36. "DTC" means The Depository Trust Company.
37. "EFFECTIVE DATE" means the first Business Day that is not less than
eleven (11) days after the Confirmation Date on which, as determined by the
Debtors and the Buyer, (i) all conditions to the Effective Date set forth herein
have been satisfied or, if permitted, waived by the Debtors and the Buyer, (ii)
no stay of the Confirmation Order is in effect, and (iii) closing under the
Stock Purchase Agreement occurs.
38. "ELIGIBLE INSTITUTION" shall have the meaning ascribed to such term in
Section V.E.l.b of the Plan.
39. "EMPLOYEE CLAIMS" means Claims which are asserted by employees of the
Debtors in connection with their employment, including, without limitation,
Claims arising from or relating to salaries or wages, accrued paid vacation,
health-related benefits, severance benefits, field management and
executive/administrative management incentive plans and similar employee
benefits.
40. "EQUITY COMMITTEE" means the Official Committee of Equity Security
Holders of CMI appointed by the United States Trustee.
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41. "EQUITY PURCHASER" means the Buyer and each other Person that receives
or purchases Purchased Shares (as that term is defined in the Stock Purchase
Agreement) in accordance with the terms and provisions of the Stock Purchase
Agreement.
42. "ESTATES" means the estates created in the Debtors' Reorganization
Cases under Section 541 of the Bankruptcy Code.
43. "EXCHANGED SECURITIES" means the Old Senior Notes, the Old Series B
Preferred Stock and the Old CMI Common Stock.
44. "FILE," "FILED" or "FILING" means file, filed or filing with the
Bankruptcy Court in the Reorganization Cases.
45. "FINAL ORDER" means an order or judgment of the Bankruptcy Court, as
entered on the Docket in the Reorganization Cases, which has not been reversed,
stayed, modified or amended, and as to which (a) the time to appeal, seek
certiorari or request reargument or further review or rehearing has expired and
no appeal, petition for certiorari or request for reargument or further review
or rehearing has been timely filed, or (b) any appeal that has been or may be
taken or any petition for certiorari or request for reargument or further review
or rehearing that has been or may be filed has been resolved by the highest
court to which the order or judgment was appealed, from which certiorari was
sought or to which the request was made and no further appeal or petition for
certiorari has been or can be taken or granted.
46. "FREDDIE MAC" means the Federal Home Loan Mortgage Corp.
47. "FREDDIE MAC AGREEMENT" means that certain Funding Note, Purchase, and
Security Agreement dated as of September 22, 1995, among Freddie Mac, CMI and
CRIIMI MAE Financial Corporation II.
48. "GUARANTEE CLAIMS" means any Claim against any of the Debtors arising
from or under any agreement of the Debtors guaranteeing the obligations of
another Debtor.
49. "HOLDER" means a Person who holds a Claim or Interest in such Person's
capacity as the holder of such Claim or Interest. Where the identity of the
Holder of a Claim or Interest is set forth on a register or other record
maintained by or at the direction of the Debtors, the Holder of such Claim or
Interest shall be deemed to be the Holder as identified on such register or
record unless the Debtors are otherwise notified in a writing authorized by such
Holder.
50. "HOLDINGS" means CRIIMI MAE Holdings II, L.P., a Delaware limited
partnership.
51. "IMPAIRED" shall have the meaning ascribed to it in Section 1124 of the
Bankruptcy Code.
52. "INDEMNITEES" shall have the meaning ascribed to such term in Section
XI.D of the Plan.
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53. "INDENTURE TRUSTEE" means State Street Bank, as indenture trustee for
the Old Senior Notes or any successor thereto.
54. "INSTRUMENT" means any share of stock, security, promissory note or
other "INSTRUMENT," within the meaning of that term, as defined in Section 9-105
(1) (i) of the UCC.
55. "INTERCOMPANY CLAIMS" means any and all Claims and causes of action
which any of the Debtors holds against any other Debtor.
56. "INTEREST" means the interest of any equity security Holder of the
Debtors, whether or not asserted, as defined in Section 101 (17) of the
Bankruptcy Code.
57. "LETTER OF TRANSMITTAL" shall have the meaning ascribed to such term in
Section V.E.l.b of the Plan.
58. "LOCAL BANKRUPTCY RULES" means the local rules of the Bankruptcy Court,
as applicable from time to time in the Reorganization Cases.
59. "NEW CMI COMMON STOCK" means the new common stock of CMI, par value
$.01 per share, to be issued to Holders of Old CMI Common Stock as of the
Effective Date.
60. "NEW DEBT" means the new secured and unsecured debt to be borrowed by,
or issued pursuant to the Plan to creditors of, the Reorganized Debtors as part
of funding the Plan and the Reorganized Debtors consistent with the Stock
Purchase Agreement.
61. "NEW EQUITY" means the new equity capital to be raised by Reorganized
CMI pursuant to the Stock Purchase Agreement as part of funding the Plan and the
Reorganized Debtors.
62. "NEW NOTES" means the notes of Reorganized CMI to be issued pursuant to
the Plan to Holders of certain Classes of Allowed Claims.
63. "NEW SECURITIES" means the New Notes, the New Series B Preferred Stock,
the New CMI Common Stock and the Rights.
64. "NEW SENIOR PREFERRED STOCK" means the new Series E Cumulative
Convertible Preferred Stock of CMI to be issued to the Equity Purchaser on the
Effective Date in accordance with the terms of the Stock Purchase Agreement, the
relative rights and preferences of which are set forth in the Articles
Supplementary.
65. "NEW SERIES B PREFERRED STOCK" means the New Series B Preferred Stock
to be issued to Holders of Old Series B Preferred Stock as of the Effective Date
in accordance with this Plan, which shall be identical to the Old Series B
Preferred Stock in all respects except that (i) the dividend rate on the New
Series B Preferred Stock shall be increased by $0.04 (four cents) per share per
quarter (which is equivalent to an increase of $0.16 (sixteen cents) per share
per annum) above the dividend rate on the Old Series B Preferred Stock and (ii)
the New Series B Preferred Stock shall be subordinate with respect to dividend
rights and liquidation preference
<PAGE>12
to the New Senior Preferred Stock and the Stockholder Preferred Stock,
provided, however, that from and after the date which is 20 months plus one
day after the date of issuance of the New Senior Preferred Stock, the New
Series B Preferred Stock issued and outstanding on the date of issuance of the
New Senior Preferred Stock, in a number not to exceed 1,593,982 shares,
having an aggregate liquidation value not to exceed $40 million and
bearing dividends at a per annum rate not to exceed 12% of such liquidation
value, shall rank pari passu with the New Senior Preferred Stock and the
Stockholder Preferred Stock.
66. "OLD CMI COMMON STOCK" means the common stock of CMI, par value $.01
per share.
67. "OLD CMI PREFERRED STOCK" means the Old Series B Preferred Stock, Old
Series C Preferred Stock and Old Series D Preferred Stock.
68. "OLD SECURITIES" means, collectively, the Old Senior Notes, the Old CMI
Preferred Stock, and the Old CMI Common Stock.
69. "OLD SENIOR NOTES" means CMI's 9 1/8% Senior Notes due 2002 in the
aggregate, original, principal amount of $100 million.
70. "OLD SERIES B PREFERRED STOCK" means CMI's Series B Cumulative
Convertible Preferred Stock, with a liquidation preference of $25.00 per share.
71. "OLD SERIES C PREFERRED STOCK" means CMI's Series C Cumulative
Convertible Preferred Stock, with a redemption price of $106 per share and a
liquidation preference of $100 per share.
72. "OLD SERIES D PREFERRED STOCK" means CMI's Series D Cumulative
Convertible Preferred Stock, with a redemption price of $106 per share and a
liquidation preference of $100 per share.
73. "ORDER" means an order or judgment of the Bankruptcy Court as entered
on the Docket.
74. "OTHER SECURED CLAIM" means any Allowed Secured Claim in Class A7,
Class B2 or Class C2.
75. "PERSON" means any individual, corporation, general partnership,
limited partnership, limited liability partnership, limited liability company,
association, joint stock company, joint venture, government or political
subdivision, official committee appointed by the United States Trustee,
unofficial committee of creditors or equity holders, or other "entity" (as
defined in the Bankruptcy Code).
76. "PETITION DATE" means October 5, 1998, the date on which the
Reorganization Cases were Filed.
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77. "PLAN" means this plan of reorganization for the Debtors in the
Reorganization Cases and all exhibits and schedules hereto, as such may be
amended, modified or supplemented from time to time consistent with the terms of
the Stock Purchase Agreement.
78. "PLAN INTEREST" means interest at such rate as may be determined by the
Bankruptcy Court.
79. "POST-PETITION TAX CLAIMS" means Administrative Claims and other Claims
by a governmental unit for taxes (and for interest and/or penalties related to
such taxes) for any tax year or period, to the extent such Claim accrues within
the period from and including the Petition Date through and including the
Effective Date.
80. "PRIORITY CLAIM" means an Allowed Claim entitled to priority under
Sections 507 (a) (3) through 507 (a) (7) or 507 (a) (9) of the Bankruptcy Code,
but excludes Priority Tax Claims.
81. "PRIORITY TAX CLAIM" means an Allowed Claim entitled to priority under
Section 507 (a) (8) of the Bankruptcy Code.
82. "RECAPITALIZATION FINANCING" means the total New Debt and New Equity to
be used in connection with funding the Plan and the Reorganized Debtors.
83. "REORGANIZATION CASES" means the Debtors' cases under chapter 11 of the
Bankruptcy Code.
84. "REORGANIZED CMI" means CMI, as it will be reorganized as of the
Effective Date in accordance with this Plan.
85. "REORGANIZED CMI ARTICLES OF INCORPORATION" means the amended and
restated articles of incorporation of Reorganized CMI, including but not limited
to the Articles Supplementary and the articles supplementary for the New Series
B Preferred Stock, that will be effective on the Effective Date and consistent
with the terms of the Stock Purchase Agreement.
86. "REORGANIZED CMI BYLAWS" means the amended and restated bylaws of
Reorganized CMI that will be effective on the Effective Date and consistent with
the terms of the Stock Purchase Agreement.
87. "REORGANIZED CMM" means CMM as it will be reorganized as of the
Effective Date in accordance with this Plan.
88. "REORGANIZED CMM ARTICLES OF INCORPORATION" means the amended and
restated articles of incorporation of Reorganized CMM that will be effective on
the Effective Date if the CMM articles of incorporation are amended; otherwise,
it means the CMM articles of incorporation in existence as of the Effective
Date.
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89. "REORGANIZED CMM BYLAWS" means the amended and restated bylaws of
Reorganized CMM that will be effective on the Effective Date if the CMM bylaws
are restated; otherwise, it means the CMM bylaws in existence as of the
Effective Date.
90. "REORGANIZED DEBTORS" means Reorganized CMI, Reorganized CMM and
Reorganized Holdings, collectively and individually, as appropriate from the
context.
91. "REORGANIZED HOLDINGS" means Holdings as it will be reorganized as of
the Effective Date in accordance with this Plan.
92. "RIGHTS" means the right to purchase shares of Stockholder Preferred
Stock of CMI upon the terms and conditions set forth in this Plan and the Stock
Purchase Agreement.
93. "RIGHTS OFFERING" means the offering of Rights to purchase Stockholder
Preferred Stock to the Holders of Old CMI Common Stock as of the Distribution
Record Date therefor as further described in Section IX.H of the Plan.
94. "SECURED CLAIM" means any Claim that is secured by a lien on property
in which the Estates have 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 Estates' interest in such property or to the extent of the
amount subject to setoff, as applicable, as determined pursuant to Section 506
(a) or Section 1111 (b) of the Bankruptcy Code and any repurchase agreement
claim to the extent of the value of the Claim Holder's interest in the property
that is the subject of the repurchase agreement.
95. "SECURITIES CLAIM" means (a) any Claim arising from a claim for
rescission of a purchase or sale of any Old Securities or for damages arising
from the purchase or sale of any Old Securities or (b) any Claim for indemnity,
reimbursement or contribution on account of any such Claim.
96. "SENIOR NOTE CLAIMS" means Claims arising from the Old Senior Notes
(including all Claims and causes of action arising therefrom or in connection
therewith).
97. "STOCK OPTIONS" means stock options outstanding as of the Effective
Date giving rise to the option to acquire shares of Old CMI Common Stock prior
to the Effective Date and New CMI Common Stock after the Effective Date as set
forth in this Plan.
98. "STOCK PURCHASE AGREEMENT" means that certain Stock Purchase Agreement
dated September 9, 1999 by and between the Buyer and CMI, as such may be
amended, modified and supplemented from time to time in accordance with its
terms.
99. "STOCKHOLDER PREFERRED STOCK" means the new Series G Preferred Stock of
CMI issuable upon the exercise of Rights pursuant to the Rights Offering to
Holders of Old CMI Common Stock as of the Distribution Record Date therefor if
the Board of Directors of CMI (as it exists before the Effective Date) votes to
proceed with a rights offering in accordance with the terms of this Plan and the
Stock Purchase Agreement.
<PAGE>15
100. "TENDERED CERTIFICATES" shall have the meaning ascribed to such term
in Section V.E.l.b of the Plan.
101. "TORT CLAIM" means any Claim related to personal injury, property
damage or loss, products liability or other similar Claims against any Debtor,
and shall not include Securities Claims or Claims arising under, based upon or
related to Stock Options.
102. "UCC" means the Maryland Uniform Commercial Code, as in effect at any
relevant time.
103. "UNIMPAIRED" means with respect to any Claim or Interest that such
Claim or Interest is not Impaired.
104. "UNSECURED CLAIM" means any Claim that is not a Secured Claim.
105. "WARRANTS" means those warrants to purchase shares of New CMI Common
Stock to be issued to the Equity Purchaser under certain conditions in
accordance with the terms of the Articles Supplementary.
B. Interpretation and Computation of Time.
1. Defined Terms.
Any term used in the Plan that is not defined in the Plan, in Article II
(Definitions) or elsewhere, but that is defined in the Bankruptcy Code, the
Bankruptcy Rules or the Local Bankruptcy Rules, shall have the meaning ascribed
to that term in the Bankruptcy Code, the Bankruptcy Rules or the Local
Bankruptcy Rules, as the case may be.
2. Rules of Interpretation.
For purposes of the Plan: (a) whenever it appears appropriate from the
context, each term, whether stated in the singular or the plural, shall include
both the singular and the plural; (b) 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 shall be
substantially in such form or substantially on such terms and conditions;
provided, however, that any change to such form, terms, or conditions which is
material to a party to such document shall not be made without such party's
consent; (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 from time to time; (d) unless otherwise
specified in a particular reference, all references in the Plan to paragraphs,
sections, articles and exhibits are references to paragraphs, sections, articles
and exhibits of or to the Plan; (e) the words "herein," "hereof," "hereto,"
"hereunder" and others of similar import refer to the Plan in its entirety
rather than to a particular portion of the Plan only; (f) captions and headings
to articles and paragraphs are inserted for convenience of reference only and
are not intended to be a part of or to affect the interpretations of the Plan;
and (g) the rules of construction set forth in Section 102 of the Bankruptcy
Code shall apply.
3. Time Periods.
<PAGE>16
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) shall apply.
III. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
The following is a designation of the Classes of Claims and Interests under
the Plan. In accordance with Section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims have not been classified and 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 another Class or Classes to
the extent that any remainder of the Claim or Interest qualifies within the
description of such other Class or Classes. A Claim or Interest is classified in
a particular Class only to the extent that the Claim or Interest is an Allowed
Claim or Allowed Interest in that Class and has not been paid, released or
otherwise satisfied before the Effective Date; a Claim or Interest which is not
an Allowed Claim or Allowed Interest is not in any Class. A Disputed Claim or
Disputed Interest, to the extent that it subsequently becomes an Allowed Claim
or Allowed Interest, shall be included in the Class for which it would have
qualified had it not been disputed. Notwithstanding anything to the contrary
contained in the Plan, no distribution shall be made on account of any Claim or
Interest to the extent such Claim or Interest is not an Allowed Claim or an
Allowed Interest. In addition, for purposes of the classification and treatment
of Secured Claims under this Plan, any transfers of Claims occurring after the
Petition Date shall not impact the classification or treatment of Secured Claims
as provided in the Plan or the status of an Unsecured Claim as of the Petition
Date to continue to be treated under this Plan as an Unsecured Claim.
C. CMI Classes
Class A1 - Citicorp Secured Claims Class A1 consists of all Allowed
Secured Claims against CMI of
Citicorp Securities, Inc., Salomon
Smith Barney Inc., Citicorp Real
Estate, Inc. and/or CitiBank N.A.
Class A2 - First Union Secured Claim Class A2 consists of all Allowed
Secured Claims against CMI of First
Union National Bank.
Class A3 - GACC Secured Claim Class A3 consists of all Allowed
Secured Claims against CMI of
German American Capital Corp.
Class A4 - Lehman Secured Claim Class A4 consists of all Allowed
Secured Claims against CMI of
Lehman Ali Inc.
Class A5 - Merrill Lynch Secured Claim Class A5 consists of all Allowed
Secured Claims against CMI of
Merrill Lynch Mortgage Capital Inc.
<PAGE>17
Class A6 - Morgan Stanley Secured Claim Class A6 consists of any Allowed
Secured Claims against CMI of
Morgan Stanley & Co. International
Ltd.
Class A7 - Other Secured Claims Class A7 consists of any Allowed
Secured Claims against CMI other
than the Secured Claims specified
in Classes A1 through A6.
Class A8 - Priority Claims Class A8 consists of all Allowed
Priority Claims against CMI.
Class A9 - Old Senior Note Claims Class A9 consists of all Allowed
Claims against CMI of Holders of
Old Senior Notes.
Class A10 - General Unsecured Claims Class A10 consists of all Allowed
Unsecured Claims against CMI other
than the Unsecured Claims (if any)
in Classes A8, A9, A11, A12, A13,
A14, A16, A18, A20 and A23 and
Administrative Claims and Priority
Tax Claims.
Class A11-Guarantee Claims Class A11 consists of all Allowed
Claims against CMI of Holders of
Guarantee Claims based upon CMI's
guarantee of obligations of CMM or
Holdings, as the case may be.
Class A12-Freddie Mac Claims Class A12 consists of Claims
against CMI of Freddie Mac
numbered 335 and 497, on the July
20, 1999 claims register, in the
amount of $230,448,487.24 each.
Class A13-Intercompany Claims Class A13 consists of all Allowed
Claims against CMI of CMM or
Holdings.
<PAGE>18
Class A14 - Old Senior Notes Securities Class A14 consists of all Allowed
Claims Securities Claims on account of Old
Senior Notes against CMI.
Class A15 - Old Series B Preferred Stock Class A15 consists of all Allowed
Old Series B Preferred Stock
Interests in CMI.
Class A16 - Old Series B Preferred Stock Class A16 consists of all Allowed
Securities Claims Securities Claims on account of Old
Series B Preferred Stock against
CMI.
Class A17 - Old Series C Preferred Stock Class A17 consists of all Allowed
Old Series C Preferred Stock
Interests in CMI.
Class A18 - Old Series C Preferred Stock Class A18 consists of all Allowed
Securities Claims Securities Claims on account of Old
Series C Preferred Stock against
CMI.
Class A19 - Old Series D Preferred Stock Class A19 consists of all Allowed
Old Series D Preferred Stock.
Class A20- Old Series D Preferred Stock Class A20 consists of all Allowed
Securities Claim Securities Claims on account of Old
Series D Preferred Stock against
CMI.
Class A21 - Old CMI Common Stock Class A21 consists of all Allowed
Old CMI Common Stock Interests in
CMI.
Class A22 - Stock Options Class A22 consists of all Allowed
Stock Options Interests in CMI.
Class A23 - Old CMI Common Stock Class A23 consists of all Allowed
Securities Claims Securities Claims on account of Old
CMI Common Stock against CMI.
D. CMM Classes
Class B1 - First Union Secured Claims Class B1 consists of all Allowed
Secured Claims against CMM of First
Union National Bank.
Class B2 - Other Secured Claims Class B2 consists of any Allowed
Secured Claims against CMM other
than the Secured Claims specified
in Class B1.
<PAGE>19
Class B3 - Priority Claims Class B3 consists of all Allowed
Priority Claims against CMM.
Class B4 - Guarantee Claims Class B4 consists of all Allowed
Claims against CMM of Holders of
Guarantee Claims based upon CMM's
guarantee of obligations of CMI or
Holdings, as the case may be.
Class B5 - General Unsecured Claims Class B5 consists of all Allowed
Unsecured Claims against CMM other
than the Unsecured Claims (if any)
in Classes B3, B4 and B6 and
Administrative Claims and Priority
Tax Claims.
Class B6 - Intercompany Claims Class B6 consists of all Allowed
Claims against CMM of CMI or
Holdings.
Class B7 - CMI's Interests in CMM Class B7 consists of all Allowed
Interests in CMM of CMI.
E. Holdings Classes
Class C1 - Citicorp Secured Claims Class C1 consists of all Allowed
Secured Claims against Holdings of
Citicorp Securities, Inc. and/or
Salomon Smith Barney Inc.
Class C2 - Other Secured Claims Class C2 consists of any Allowed
Secured Claims against Holdings
other than the Secured Claims
specified in Class C1.
Class C3 - Priority Claims Class C3 consists of all Allowed
Priority Claims against Holdings.
Class C4 - Guarantee Claims Class C4 consists of all Allowed
Claims against Holdings of Holders
of Guarantee Claims based upon
Holdings' guarantee of obligations
of CMI or CMM, as the case may be.
Class C5 - General Unsecured Claims Class C5 consists of all Allowed
Unsecured Claims against Holdings
other than the Unsecured Claims (if
any) in Classes C3, C4 and C6 and
Administrative Claims and Priority
Tax Claims.
<PAGE>20
Class C6 - Intercompany Claims Class C6 consists of all Allowed
Claims against Holdings of CMI or
CMM.
Class C7 - Interests in Holdings Class C7 consists of all Allowed
Interests in Holdings of CMI and
CMSLP.
IV. GENERAL PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS
A. Unclassified Claims.
1. Administrative Claims.
a. General.
Subject to certain additional requirements for professionals and certain
other entities set forth below, Reorganized CMI, Reorganized CMM or Reorganized
Holdings, as the case may be, shall pay to each Holder of an Allowed
Administrative Claim, on account of its Administrative Claim and in full
satisfaction thereof, Cash equal to the amount of such Allowed Administrative
Claim on the later of the Effective Date or the day on which such Claim becomes
an Allowed Claim, unless the Holder and Reorganized CMI, Reorganized CMM or
Reorganized Holdings, as the case may be, shall have agreed to other treatment
of such Claim, or an order of the Bankruptcy Court provides for other terms, in
which case such Allowed Administrative Claim shall be paid in accordance with
such agreement or Bankruptcy Court order, as applicable; provided, that if
incurred in the ordinary course of business or otherwise assumed by the Debtors
pursuant to the Plan (including Administrative Claims of governmental units for
taxes), an Allowed Administrative Claim will be assumed on the Effective Date
and paid, performed or settled by Reorganized CMI, Reorganized CMM or
Reorganized Holdings, as the case may be, when due in accordance with the terms
and conditions of the particular agreement(s) governing the obligation in the
absence of the Reorganization Cases.
b. Payment of Statutory Fees.
All fees payable pursuant to 28 U.S.C. 1930(a)(6) (U.S. Trustee Fees)
shall be paid by the Debtors or the Reorganized Debtors, as applicable, when
such fees are due and owing.
2. Priority Tax Claims.
Unless otherwise agreed to by the Debtors or Reorganized CMI, Reorganized
CMM or Reorganized Holdings, as the case may be, and a Holder of a Priority Tax
Claim, each Holder of an Allowed Priority Tax Claim shall receive, at the sole
option of Reorganized CMI, Reorganized CMM or Reorganized Holdings, as the case
may be, (i) Cash equal to the unpaid portion of such Allowed Priority Tax Claim
on the later of the Effective Date and the date on which such Claim becomes an
Allowed Priority Tax Claim, or as soon thereafter as is practicable, or (ii)
equal quarterly Cash payments in an aggregate amount equal to such Allowed
Priority Tax Claim, together with interest at a fixed annual rate to be
determined by the
<PAGE>21
Bankruptcy Court or otherwise agreed to by Reorganized CMI, Reorganized CMM
or Reorganized Holdings, as the case may be, and such Holder, over a period
through the sixth anniversary of the date of assessment of such Allowed
Priority Tax Claim, or upon such other terms determined by the
Bankruptcy Court to provide the Holder of such Allowed Priority Tax Claim
deferred Cash payments having a value, as of the Effective Date, equal to such
Allowed Priority Tax Claim. The Holders of Allowed Priority Tax Claims are not
entitled to vote on the Plan. Pursuant to Section 1123(a)(1) of the Bankruptcy
Code, Priority Tax Claims are not designated a Class of Claims for purposes of
voting on the Plan.
3. Bar Date for Administrative Claims.
a. General Provisions.
Except as provided below for (i) non-tax liabilities incurred in the
ordinary course of business by the Debtors in Possession and (ii) Post-Petition
Tax Claims, requests for payment of Administrative Claims must be Filed and
served on counsel for the Debtors and Reorganized CMI, Reorganized CMM or
Reorganized Holdings, as the case may be, no later than (x) sixty (60) days
after the Effective Date, or (y) such later date, if any, as the Bankruptcy
Court shall order upon application made prior to the end of such 60-day period.
Holders of Administrative Claims (including, without limitation, professionals
requesting compensation or reimbursement of expenses and the Holders of any
Claims for federal, state or local taxes) that are required to File a request
for payment of such Claims and that do not File such requests by the applicable
bar date shall be forever barred from asserting such Claims against the Debtors,
Reorganized CMI, Reorganized CMM or Reorganized Holdings, or any of their
respective properties.
b. Professionals.
All professionals or other Persons requesting compensation or reimbursement
of expenses pursuant to Sections 327, 328, 330, 331, 503(b), 506(b) or 1103 of
the Bankruptcy Code for services rendered on or before the Effective Date
(including, without limitation, any compensation requested by any professional
or any other Person for making a substantial contribution in the Reorganization
Cases) shall File and serve on Reorganized CMI, Reorganized CMM or Reorganized
Holdings, as the case may be, and counsel for Reorganized CMI, Reorganized CMM
or Reorganized Holdings, as the case may be, an application for final allowance
of compensation and reimbursement of expenses no later than sixty (60) days
after the Effective Date. Objections to applications of professionals or other
Persons for compensation or reimbursement of expenses must be Filed and served
on the Reorganized Debtors, counsel for the Reorganized Debtors and the
requesting professional or other Person not later than ninety (90) days after
the Effective Date.
On or as soon as reasonably practicable after the Effective Date,
Reorganized CMI shall pay the contractual claims of the Indenture Trustee for
its fees and expenses including its reasonable attorneys' fees and expenses. To
the extent, after being furnished with normal supporting documents for such fees
and expenses, Reorganized CMI disputes the reasonableness of any such fees and
expenses, Reorganized CMI shall pay such fees and expenses as are not disputed,
and shall submit to the Indenture Trustee a written list of specific fees and
expenses viewed by Reorganized CMI as not being reasonable. To the extent that
Reorganized CMI and
<PAGE>22
the Indenture Trustee are unable to resolve any dispute, the dispute shall be
resolved by the Bankruptcy Court. The Indenture Trustee shall not attach or
set off any of its fees and expenses against distributions to Holders of Old
Senior Notes and shall not otherwise withhold or delay any such distributions.
c. Ordinary Course Liabilities.
Except as provided herein, holders of Administrative Claims based on
liabilities incurred in the ordinary course of the Debtors' businesses (other
than Claims of governmental units for taxes or Claims and/or penalties related
to such taxes) shall not be required to File any request for payment of such
Claims. Such Administrative Claims shall be assumed and paid by Reorganized CMI,
Reorganized CMM or Reorganized Holdings, as the case may be, pursuant to the
terms and conditions of the particular transactions giving rise to such
Administrative Claims, without any further action by the Holders of such Claims.
Any dispute with respect to ordinary course liabilities shall be submitted to
the Bankruptcy Court for resolution unless resolved by agreement of the parties.
d. Tax Claims.
All requests for payment of Post-Petition Tax Claims, for which no bar date
has otherwise been previously established, must be Filed on or before the later
of (i) sixty (60) days following the Effective Date, and (ii) 120 days following
the filing of the tax return for such taxes for such tax year or period with the
applicable governmental unit. Any Holder of any Post-Petition Tax Claim that is
required to File a request for payment of such taxes and that does not File such
a Claim by the applicable bar date shall be forever barred from asserting any
such Post-Petition Tax Claim against the Debtors, Reorganized CMI, Reorganized
CMM or Reorganized Holdings, or any of their respective properties, whether any
such Post-Petition Tax Claim is deemed to arise prior to, on or subsequent to
the Effective Date.
B. Identification of Classes of Claims and Interests Impaired and Not
Impaired by the Plan.
1. Claims Against and Interests in CMI.
Classes A8, A12, A14, A16, A17, A18, A19, A20, A22 and A23 are not Impaired
by the Plan. Classes A1, A2, A3, A4, A5, A6, A7, A9, A10, A11, A13, A15 and A21
are Impaired Classes under the Plan.
2. Claims Against and Interest in CMM.
Classes B3, B4 and B7 are not Impaired by the Plan. Classes B1, B2, B5 and
B6 are Impaired Classes under the Plan.
3. Claims Against and Interests in Holdings.
Classes C3 and C7 are not Impaired by the Plan. Classes C1, C2, C4, C5 and
C6 are Impaired Classes under the Plan.
<PAGE>23
C. Treatment of Claims Against and Interests in CMI.
1. Class A1 (Citicorp Secured Claims).
The Holders of Class A1 Claims shall receive on the Effective Date payment
in full in Cash of Allowed Class A1 Claims including Plan Interest thereon.
2. Class A2 (First Union Secured Claim).
The Holder of the Allowed Class A2 Claim shall receive on the Effective
Date payment in full in Cash of the Allowed Class A2 Claim including Plan
Interest thereon.
3. Class A3 (GACC Secured Claim).
The Holder of the Allowed Class A3 Claim shall receive on the Effective
Date a combination of (i) a partial payment in Cash and (ii) part of the secured
New Debt, in a total amount equal to the amount of its Allowed Class A3 Claim,
including Plan Interest thereon, or such other treatment as may be agreed to by
CMI and the Holder of the Allowed Class A3 Claim that is consistent with the
Stock Purchase Agreement.
4. Class A4 (Lehman Secured Claim).
The Holder of the Allowed Class A4 Claim shall receive on the Effective
Date payment in full in Cash of the Allowed Class A4 Claim including Plan
Interest thereon.
5. Class A5 (Merrill Lynch Secured Claim).
The Holder of the Allowed Class A5 Claim shall receive on the Effective
Date a combination of (i) a partial payment in Cash and (ii) part of the secured
New Debt, in a total amount equal to the amount of its Allowed Class A5 Claim,
including Plan Interest thereon, or such other treatment as may be agreed to by
CMI and the Holder of the Allowed Class A5 Claim that is consistent with the
Stock Purchase Agreement.
6. Class A6 (Morgan Stanley Secured Claim).
The Holder of the Allowed Class A6 Claim shall receive on the Effective
Date payment in full in Cash of the Allowed Class A6 Claim including Plan
Interest thereon.
7. Class A7 (Other Secured Claims).
The Holder of an Allowed Class A7 Claim (if any) shall receive on the
Effective Date payment in full in Cash of the Allowed Class A7 Claim including
Plan Interest thereon.
<PAGE>24
8. Class A8 (Priority Claims).
The Holders of Allowed Class A8 Claims shall receive on the Effective Date
payment in full in Cash of Allowed Class A8 Claims including Plan Interest
thereon.
9. Class A9 (Old Senior Note Claims).
The Holders of Allowed Class A9 Claims shall receive on the Effective Date
payment in full of Allowed Class A9 Claims including Plan Interest thereon in
the form of (i) Cash equal to 50% of the amount of each Holder's Allowed Class
A9 Claim and (ii) a portion of the New Notes equal in value to 50% of the amount
of such Holder's Allowed Class A9 Claim.
10. Class A10 (General Unsecured Claims).
The Holders of Allowed Class A10 Claims shall receive on the Effective Date
payment in full of Allowed Class A10 Claims including Plan Interest thereon in
the form of (i) Cash equal to 50% of the amount of each Holder's Allowed Class
A10 Claim and (ii) a portion of the New Notes equal in value to 50% of the
amount of such Holder's Allowed Class A10 Claim.
11. Class A11 (Guarantee Claims).
The Holders of Allowed Class A11 Claims (if any) shall receive if, as and
when any such Claim is allowed by Final Order payment in full of any such
Allowed Class A11 Claim including Plan Interest thereon in the form of (i) Cash
equal to 50% of the amount of each Holder's Allowed Class A11 Claim and (ii) a
portion of the New Notes equal in value to 50% of the amount of such Holder's
Allowed Class A11 Claim.
12. Class A12 (Freddie Mac Claims).
CMI shall reaffirm its obligation under the Freddie Mac Agreement on the
Effective Date in exchange for Freddie Mac withdrawing its Claims numbered 335
and 497, on the July 2, 1999 claims register, each in the amount of
$230,448,487.24 on the Effective Date, to the extent that the Claims are not
withdrawn prior to the Effective Date.
13. Class A13 (Intercompany Claims).
No payment shall be made under the Plan to Holders of Class A13 Claims on
account of such Claims.
14. Class A14 (Old Senior Note Securities Claims).
The Holders of Allowed Class A14 Claims (if any) shall be paid in Cash in
full if, as and when any such Claim is Allowed by Final Order, provided that any
such Claim not timely filed (and in any event not filed before the Confirmation
Date) shall be released and discharged under the Plan and the Confirmation
Order.
<PAGE>25
15. Class A15 (Old Series B Preferred Stock).
Each Holder of Old Series B Preferred Stock as of the Distribution Record
Date therefor shall receive in exchange for its Old Series B Preferred Stock an
identical number of shares of New Series B Preferred Stock issued effective as
of the Effective Date. All shares of Old Series B Preferred Stock shall be
deemed cancelled as of the Effective Date.
16. Class A16 (Old Series B Preferred Stock Securities Claims).
The Holders of Allowed Class A16 Claims (if any) shall be paid in Cash in
full if, as and when any such Claim is Allowed by Final Order, provided that any
such Claim not timely filed (and in any event not filed before the Confirmation
Date) shall be released and discharged under the Plan and the Confirmation
Order.
17. Class A17 (Old Series C Preferred Stock).
All shares of Old Series C Preferred Stock shall be cancelled as of the
Effective Date. Each Holder of Old Series C Preferred Stock as of the
Distribution Record Date therefor shall receive payment in Cash on the Effective
Date equal to the redemption price for each share of Old Series C Preferred
Stock held by such Holder.
18. Class A18 (Old Series C Preferred Stock Securities Claims).
The Holders of Allowed Class A18 Claims (if any) shall be paid in Cash in
full if, as and when any such Claim is Allowed by Final Order, provided that any
such Claim not timely filed (and in any event not filed before the Confirmation
Date) shall be released and discharged under the Plan and the Confirmation
Order.
19. Class A19 (Old Series D Preferred Stock).
All shares of Old Series D Preferred Stock shall be cancelled as of the
Effective Date. Each Holder of Old Series D Preferred Stock as of the
Distribution Record Date therefor shall receive payment in Cash on the Effective
Date equal to the redemption price for each share of Old Series D Preferred
Stock held by such Holder.
20. Class A20 (Old Series D Preferred Stock Securities Claim).
The Holders of Allowed Class A20 Claims (if any) shall be paid in Cash in
full if, as and when any such Claim is Allowed by Final Order, provided that any
such Claim not timely filed (and in any event not filed before the Confirmation
Date) shall be released and discharged under the Plan and the Confirmation
Order.
21. Class A21 (Old CMI Common Stock).
Each Holder of Old CMI Common Stock as of the Distribution Record Date
therefor shall receive in exchange for its Old CMI Common Stock an identical
number of shares of New
<PAGE>26
CMI Common Stock issued effective as of the Effective Date, plus one Right
for each share of Old CMI Common Stock held by such Holder if the Board of
Directors of CMI (before the Effective Date) determines to proceed with the
Rights Offering as described in Section IX.H of the Plan. All shares of Old
CMI Common Stock shall be deemed cancelled as of the Effective Date.
22. Class A22 (Stock Options).
All Holders of Stock Options shall, on and after the Effective Date, be
entitled to exercise their options to purchase shares of common stock on the
same terms and conditions as existed prior to the Effective Date except that the
option will, on and after the Effective Date, represent an option to purchase an
identical number of shares of New CMI Common Stock rather than Old CMI Common
Stock.
23. Class A23 (Old CMI Common Stock Securities Claims).
All Holders of Allowed Class A23 Claims as of the Effective Date shall
retain such Claims and be entitled to continue to pursue such Claims in
accordance with otherwise applicable non-bankruptcy law and notwithstanding the
provisions of Section XI.A of the Plan.
D. Treatment of Claims Against and Interests in CMM.
1. Class B1 (First Union Secured Claims).
The Holder of the Allowed Class B1 Claim shall receive on the Effective
Date payment in full in Cash of the Allowed Class B1 Claim including Plan
Interest thereon.
2. Class B2 (Other Secured Claims)
The Holder of an Allowed Class B2 Claim (if any) shall receive on the
Effective Date payment in full in Cash of the Allowed Class B2 Claim including
Plan Interest thereon.
3. Class B3 (Priority Claims).
The Holders of Allowed Class B3 Claims shall receive on the Effective Date
payment in full in Cash of Allowed Class B3 Claims including Plan Interest
thereon.
4. Class B4 (Guarantee Claims).
The Holders of Allowed Class B4 Claims (if any) shall be paid, if, as and
when any such Claim is allowed by Final Order, in Cash in full by CMM or
Reorganized CMM including Plan Interest thereon if and to the extent not fully
treated with respect to such Holder's underlying Claim guaranteed by CMM under
the Plan treatment for Claims against CMI or Holdings, as the case may be.
<PAGE>27
5. Class B5 (General Unsecured Claims).
The Holders of Allowed Class B5 Claims shall receive on the Effective Date
payment in full in Cash of Allowed Class B5 Claims including Plan Interest
thereon.
6. Class B6 (Intercompany Claims).
No payment shall be made under the Plan to Holders of Class B6 Claims on
account of such Claims.
7. Class B7 (CMI's Interests in CMM).
The Holder of the Class B7 Interest shall retain its Interest under the
Plan.
E. Treatment of Claims Against and Interests in Holdings.
1. Class C1 (Citicorp Secured Claims).
The Holder of the Allowed Class C1 Claim shall receive on the Effective
Date payment in full in Cash of the Allowed Class C1 Claim including Plan
Interest thereon.
2. Class C2 (Other Secured Claims).
The Holder of an Allowed Class C2 Claim (if any) shall receive on the
Effective Date payment in full in Cash of the Allowed Class C2 Claim including
Plan Interest thereon.
3. Class C3 (Priority Claims).
The Holders of Allowed Class C3 Claims shall receive on the Effective Date
payment in full in Cash of Allowed Class C3 Claims including Plan Interest
thereon.
4. Class C4 (Guarantee Claims).
The Holders of Allowed Class C4 Claims (if any) shall receive if, as and
when any such Claim is allowed by Final Order payment in full of any such
Allowed Class C4 Claim including Plan Interest thereon in the form of (i) Cash
equal to 50% of the amount of each Holder's Allowed Class C4 Claim and (ii) a
portion of the New Notes equal in value to 50% of the amount of such Holder's
Allowed Class C4 Claim.
5. Class C5 (General Unsecured Claims)
The Holders of Allowed Class C5 Claims shall receive if, as and when any
such Claim is allowed by Final Order payment in full of any such Allowed Class
C5 Claim including Plan Interest thereon in the form of (i) Cash equal to 50% of
the amount of each Holder's Allowed Class C5 Claim and (ii) a portion of the New
Notes equal in value to 50% of the amount of such Holder's Allowed Class C5
Claim.
<PAGE>28
6. Class C6 (Intercompany Claims).
No payment shall be made under the Plan to Holders of Class C6 Claims on
account of such Claims.
7. Class C7 (Interests in Holdings).
The Holders of the Class C7 Interests shall retain their Interests under
the Plan.
F. Modification of Treatment of Claims.
The Debtors reserve for themselves and the Reorganized Debtors the right to
modify the treatment of any Allowed Claim or Interest in any manner adverse only
to the Holder of such Claim or Interest at any time after the Effective Date
upon the consent of the creditor or interest holder whose Allowed Claim or
Interest, as applicable, is being adversely affected.
V. DISTRIBUTIONS UNDER THE PLAN
A. Disbursing Agent.
The Reorganized Debtors, or such Person(s) as the Debtors may employ in
their sole discretion, will act as Disbursing Agent under the Plan. The
Disbursing Agent shall make all distributions of Cash required to be distributed
under the applicable provisions of the Plan and any documents executed in
connection therewith. The Disbursing Agent may employ or contract with other
entities to assist in or make the distributions required by the Plan and any
documents executed in connection therewith. Each Disbursing Agent will serve
without bond, and each Disbursing Agent, without further Bankruptcy Court
approval, will receive reasonable compensation for distribution services
rendered pursuant to the Plan and reimbursement of reasonable out-of-pocket
expenses incurred in connection with such services from the Reorganized Debtors
on terms acceptable to the Reorganized Debtors.
B. Timing of Distributions.
Except as otherwise provided in this Plan with respect to any particular
Claim or Interest, property to be distributed hereunder on account of Allowed
Claims and Allowed Interests (a) shall be distributed on the date provided for
distribution with respect to that Class or as soon as practicable thereafter to
each Holder of an Allowed Claim or an Allowed Interest in that Class that is an
Allowed Claim or an Allowed Interest as of said distribution date, and (b) shall
be distributed to each Holder of an Allowed Claim or an Allowed Interest of that
Class that becomes an Allowed Claim or Allowed Interest after the distribution
date as soon as practicable after the Order of the Bankruptcy Court allowing
such Claim or Interest becomes a Final Order.
C. Methods of Distributions.
1. Cash Payments.
<PAGE>29
Cash payments made pursuant to the Plan will be in United States dollars.
Cash payments to foreign creditors may be made, at the option of the Debtors or
the Reorganized Debtors, in such funds and by such means as are necessary or
customary in a particular foreign jurisdiction. Cash payments made pursuant to
the Plan in the form of checks issued by Reorganized Debtors shall be null and
void if not cashed within 90 days of the date of the issuance thereof. Requests
for reissuance of any check shall be made directly to the Disbursing Agent as
set forth in Section V.G below. Cash payments may, at the option of the Debtors
or Reorganized Debtors, be made by wire transfer.
2. Compliance with Tax Requirements.
In connection with the distributions set forth herein, to the extent
applicable, the Disbursing Agent shall comply with all tax withholding and
reporting requirements imposed on it by any governmental unit, and all
distributions pursuant to this Plan shall be subject to such withholding and
reporting requirements. The Disbursing Agent shall be authorized to take any and
all actions that may be necessary or appropriate to comply with such withholding
and reporting requirements.
Notwithstanding any other provision contained herein: (i) each Holder of an
Allowed Claim or Allowed Interest that is to receive a distribution of Cash
pursuant to the Plan shall have sole and exclusive responsibility for the
satisfaction and payment of any tax obligations imposed by any governmental
unit, including income, withholding and other tax obligations, on account of
such distribution; and (ii) no distribution shall be made to or on behalf of
such Holder pursuant to the Plan unless and until such Holder has made
arrangements reasonably satisfactory to the Disbursing Agent for the payment and
satisfaction of such tax obligations. Any distributions pursuant to the Plan
will, pending the implementation of such arrangements, be treated as an
undeliverable distribution pursuant to Section V.G of the Plan.
D. Distribution Record Date.
As of the close of business on the Distribution Record Date, the transfer
registers for the Old Securities maintained by the Debtors, or their respective
agents, will be closed. The Disbursing Agent and its respective agents and the
Indenture Trustee will have no obligation to recognize the transfer of any Old
Securities occurring after the Distribution Record Date, and will be entitled
for all purposes relating to this Plan to recognize and deal only with those
Holders of record as of the close of business on the Distribution Record Date.
E. Surrender of Cancelled Old Securities and Exchange of Exchanged
Securities for New Securities.
1. Tender of Old Securities.
The mechanism by which Holders of Allowed Claims and Allowed Interests
surrender their Old Securities in order to receive Cash, if and as applicable
under this Plan, and in the case of Exchanged Securities, to exchange such
Exchanged Securities for New Securities (as applicable), shall be determined
based upon the manner in which the Old Securities were issued and the mode in
which they are held, as set forth below.
<PAGE>30
a. Old Securities Held in Book-Entry Form
Old Securities held in book-entry form through bank and broker nominee
accounts shall be mandatorily cancelled and (i) Cash distributed, if and as
applicable under this Plan, and (ii) in the case of Exchanged Securities,
mandatorily exchanged for New Securities (as applicable) through the facilities
of such nominees and the systems of the applicable securities depository or
Clearing System holding such Old Securities on behalf of the brokers or banks.
b. Old Securities in Physical, Registered, Certificated Form
Each Holder of Old Securities in physical, registered, certificated form
will be required, on or before the Effective Date, to deliver its physical
certificates (the "TENDERED CERTIFICATES") to the Disbursing Agent, accompanied
by a properly executed letter of transmittal, to be distributed by the
Disbursing Agent after the Confirmation Date and containing such representations
and warranties as are described in the Disclosure Statement (a "LETTER OF
TRANSMITTAL").
Any Cash or New Securities to be distributed pursuant to this Plan on
account of any Allowed Claim or Allowed Interest represented by an Old Security
held in physical, registered, certificated form shall, pending such surrender,
be treated as an undeliverable distribution pursuant to Section V.G below.
Signatures on a Letter of Transmittal must be guaranteed by an Eligible
Institution (as defined below), unless the Old Securities tendered pursuant
thereto are tendered for the account of an Eligible Institution. If signatures
on a Letter of Transmittal are required to be guaranteed, such guarantees must
be by a member firm of a registered national securities exchange in the United
States, a member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or a correspondent in the
United States (each of which is an "ELIGIBLE INSTITUTION"). If Old Securities
are registered in the name of a Person other than the Person signing the Letter
of Transmittal, the Old Securities, in order to be tendered validly, must be
endorsed or accompanied by a properly completed power of authority, with
signature guaranteed by an Eligible Institution.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Letters of Transmittal and Tendered Certificates will
be resolved by the applicable Disbursing Agent, whose determination shall be
final and binding, subject only to review by the Bankruptcy Court upon
application with due notice to any affected parties in interest. CMI reserves
the right, on behalf of itself and the Disbursing Agent, to reject any and all
Letters of Transmittal and Tendered Certificates not in proper form, or Letters
of Transmittal and Tendered Certificates, the Disbursing Agent's acceptance of
which would, in the opinion of the Disbursing Agent or its counsel, be unlawful.
2. Delivery of New Securities in Exchange for Exchanged
Securities.
On the Effective Date, Reorganized CMI or the Disbursing Agent shall issue
and authenticate the New Securities and shall apply to DTC to make the New
Securities eligible for
<PAGE>31
deposit at DTC. With respect to Holders of Exchanged Securities who hold such
Exchanged Securities through nominee accounts at bank and broker participants
in DTC or any similar clearing system, the Disbursing Agent shall deliver
the New Securities to DTC or to the registered address specified by the
Clearing System. The Clearing System (or its depositary) shall return the
applicable Exchanged Securities to the Disbursing Agent for
cancellation.
The Disbursing Agent will request that DTC effect a mandatory exchange of
the applicable Exchanged Securities for the applicable New Securities by
crediting the accounts of its participants with the applicable New Securities in
exchange for the Exchanged Securities. On the effective date of such exchange,
each DTC participant will effect a similar exchange for accounts of the
beneficial owners holding Exchanged Securities through such firms. Neither the
Debtors, Reorganized Debtors nor the Disbursing Agent shall have any
responsibility or liability in connection with the Clearing Systems' or such
participants' effecting, or failure to effect, such exchanges.
Holders of Exchanged Securities holding such Exchanged Securities outside a
Clearing System will be required to surrender their Exchanged Securities by
delivering them to the Disbursing Agent, along with properly executed Letters of
Transmittal (as described above in Section V.E.1.b). The Disbursing Agent shall
forward the New Securities on account of such Exchanged Securities to such
Holders.
3. Special Procedures for Lost, Stolen, Mutilated or
Destroyed Instruments.
Any Holder of a Claim or an Interest evidenced by an Instrument that has
been lost, stolen, mutilated or destroyed will, in lieu of surrendering such
Instrument, deliver to the Disbursing Agent: (a) an affidavit of loss or other
evidence reasonably satisfactory to the Disbursing Agent of the loss, theft,
mutilation or destruction; and (b) such security or indemnity as may reasonably
be required by the Disbursing Agent to hold the Disbursing Agent harmless from
any damages, liabilities or costs incurred in treating such individual as a
Holder of an Instrument. Upon compliance with this Section, the Holder of a
Claim or Interest evidenced by any such lost, stolen, mutilated or destroyed
Instrument shall, for all purposes under the Plan and notwithstanding anything
to the contrary contained herein, be deemed to have surrendered such Instrument.
4. Failure to Surrender Cancelled Instrument.
Any Holder of Old Securities holding such Old Securities in physical,
registered or certificated form who has not properly completed and returned to
the Disbursing Agent a Letter of Transmittal, together with the applicable
Tendered Certificates, within two years after the Effective Date shall have its
claim for a distribution pursuant to the Plan on account of such Instrument
discharged and shall be forever barred from asserting any such claim against
Reorganized CMI, Reorganized CMM or Reorganized Holdings or their properties. In
such cases, any Cash or New Securities held for distribution on account of such
claim shall be disposed of pursuant to the provisions of Section V.G hereof.
<PAGE>32
F. Release of Security Interests in or Other Claims to or against Assets
or Property of the Reorganized Debtors by Creditors Paid Pursuant to
the Plan.
Any Holder of a Secured Claim whose Secured Claim is being paid in full in
accordance with Section IV.C, IV.D or IV.E of the Plan shall cooperate in all
respects with the Reorganized Debtors and shall execute such documents and
release and return to the Reorganized Debtors such assets or property of the
Debtors or Reorganized Debtors, as applicable, that such creditor is holding,
directly or indirectly, as collateral and, if applicable, unwind any alleged
repurchase agreements or claims to assets or property subject to such alleged
repurchase agreements. Furthermore, any and all Holders of such Secured Claims
shall execute such documents and take such actions as may be reasonably required
by the Reorganized Debtors to effectuate the transfer or retransfer back to the
Reorganized Debtors of all collateral security, or assets or property held
subject to alleged repurchase agreements, free and clear of all liens, security
interests, claims or interests in or to such collateral, assets or property by
such Holder, and shall confirm the foregoing in writing if requested by the
Reorganized Debtors.
G. Delivery of Distributions; Undeliverable or Unclaimed Distributions.
Any Person that is entitled to receive a Cash distribution under this Plan
but that fails to cash a check within 90 days of its issuance shall be entitled
to receive a reissued check from Reorganized CMI, Reorganized CMM or Reorganized
Holdings, as the case may be, for the amount of the original check, without any
interest, if such Person requests the Disbursing Agent to reissue such check and
provides the Disbursing Agent with such documentation as the Disbursing Agent
reasonably requests to verify that such Person is entitled to such check, prior
to the second anniversary of the Effective Date. If a Person fails to cash a
check within 90 days of its issuance and fails to request reissuance of such
check prior to the second anniversary of the Effective Date, such Person shall
not be entitled to receive any distribution under this Plan.
Subject to Bankruptcy Rule 9010, all distributions to any Holder of an
Allowed Claim or an Allowed Interest shall be made to the address of such Holder
on the books and records of the Debtors or their agents, unless Reorganized CMI,
Reorganized CMM or Reorganized Holdings, as applicable, has been notified in
writing of a change of address. If the distribution to any Holder of an Allowed
Claim or Allowed Interest is returned to a Disbursing Agent as undeliverable,
such Disbursing Agent shall use reasonable efforts to determine the current
address of such Holder, but no distribution shall be made to such Holder unless
and until the applicable Disbursing Agent has determined or is notified in
writing of such Holder's then-current address, at which time such distribution
shall be made to such Holder without any additional interest on such
distribution after the Effective Date. Undeliverable distributions shall remain
in the possession of the applicable Disbursing Agent pursuant to Section V.A of
the Plan until such time as a distribution becomes deliverable. Undeliverable
Cash or New Securities shall be held in trust by the applicable Disbursing Agent
for the benefit of the potential claimants of such funds or securities, and will
be accounted for separately. Any Disbursing Agent holding undeliverable Cash
shall invest such Cash in a manner consistent with the Debtors' investment and
deposit guidelines. Any interest paid, and any other amounts earned, with
respect to such undeliverable Cash pending its distribution in accordance with
this Plan shall be property of Reorganized CMI, Reorganized CMM or Reorganized
Holdings, as the case may be. Any unclaimed or undeliverable distributions
(including Cash and New Securities) shall be deemed
<PAGE>33
unclaimed property under Section 347 (b) of the Bankruptcy Code at the
expiration of two years after the Effective Date and, after such date, all
such unclaimed property shall revert to Reorganized CMI, Reorganized CMM,
or Reorganized Holdings, as the case may be, and the Claim or Interest of
any Holder with respect to such property shall be discharged and forever
barred.
H. Procedures for Treating Disputed Claims Under Plan of Reorganization.
1. Disputed Claims.
a. Process.
If any of the Debtors or Reorganized Debtors disputes any Claim, such
dispute shall be determined, resolved or adjudicated, as the case may be, under
applicable law, and such Claim shall survive the Effective Date to the extent
that such Claim has not been allowed and has not received the treatment afforded
the Class of Claims in which such Claim is classified under this Plan on or
before the Effective Date. Among other things, any Debtor or Reorganized Debtors
may elect, at its sole option, to object or seek estimation under Section 502 of
the Bankruptcy Code with respect to any proof of Claim filed by or on behalf of
a Holder of a Claim or any proof of Interest filed by or on behalf of a Holder
of an Interest.
b. Tort Claims.
All Tort Claims are Disputed Claims. Any unliquidated Tort Claim that is
not otherwise settled or resolved pursuant to Section V.H.l.a above shall be
determined and liquidated under applicable law in the Bankruptcy Court or the
administrative or judicial tribunal in which it is pending on the Confirmation
Date or, if no such action was pending on the Confirmation Date, in the
Bankruptcy Court or any administrative or judicial tribunal of appropriate
jurisdiction. Pursuant to Section IX.E hereof, the automatic stay arising
pursuant to Section 362 of the Bankruptcy Code shall be vacated as of the
Effective Date as to all Tort Claims. Any Tort Claim determined and liquidated
pursuant to a judgment obtained in accordance with this Section V.H. l.b and
applicable non-bankruptcy law that is no longer subject to appeal or other
review and that is not paid by applicable insurance coverage shall be deemed to
be an Allowed Claim in Class A10, B5 or C5, as applicable, in such liquidated
amount and satisfied in accordance with this Plan. Nothing contained in this
Section V.H.l.b shall constitute or be deemed a waiver of any claim, right or
cause of action that the Debtors or the Reorganized Debtors may have against any
Person in connection with or arising out of any Tort Claim, including, without
limitation, any rights under Section 157(b) of title 28, United States Code.
2. Objections to Claims and Interests.
Except insofar as a Claim or Interest is allowed hereunder, Reorganized
CMI, Reorganized CMM and Reorganized Holdings shall be entitled and reserve the
right to object to Claims and Interests. Except as otherwise provided in Section
V.H.3 below and except as otherwise ordered by the Bankruptcy Court, objections
to any Claim or Interest, including, without limitation, Administrative Claims,
shall be Filed and served upon the Holder of such Claim or Interest no later
than 90 days after the Effective Date, unless such period, is, extended
<PAGE>34
by the Bankruptcy Court, which extension may be granted on an ex parte basis
without notice or hearing. After the Confirmation Date, only the Debtors,
Reorganized CMI, Reorganized CMM or Reorganized Holdings shall have the
authority to File, settle, compromise, withdraw or litigate to judgment
objections to Claims and Interests. From and after the Confirmation Date, the
Debtors, Reorganized CMI, Reorganized CMM or Reorganized Holdings may settle
or compromise any Disputed Claim or Disputed Interest without approval of the
Bankruptcy Court. Except as (i) specified otherwise herein, or (ii) ordered
by the Bankruptcy Court, all Disputed Claims or Disputed Interests shall be
resolved by the Bankruptcy Court. The failure of the Debtors to object to
any Claim or Interest for voting purposes shall not be deemed to be a
waiver of the Debtors' or Reorganized Debtors right to object to any Claim
or Interest in whole or in part thereafter.
3. Professionals, Claims.
Except as otherwise ordered by the Bankruptcy Court, objections to Claims
of professionals shall be governed by the provisions of Section IV.A.3.b hereof.
4. No Distributions Pending Allowance.
Notwithstanding any other provisions of this Plan, no payments or
distributions will be made on account of a Disputed Claim or a Disputed Interest
until such Claim or Interest becomes an Allowed Claim or Allowed Interest.
5. Distributions on Account of Disputed Claims and Interests Once
They are Allowed.
Within 30 days after the end of each calendar quarter following the
Effective Date, the applicable Disbursing Agent will make all distributions on
account of any Disputed Claim or Disputed Interest that has become an Allowed
Claim or Allowed Interest during the preceding calendar quarter. Such
distributions will be made pursuant to the provisions of the Plan governing the
applicable Class. Holders of Disputed Claims or Disputed Interests that are
ultimately allowed will also be entitled to receive, on the basis of the amount
ultimately allowed: (i) matured and payable Plan Interest, if any, at the rate
provided for the Class to which such Claim belongs; and (ii) any interest
payments, dividends or other payments made to the Class to which such Claim or
Interest belongs, but held pending distribution.
I. Setoffs.
Except with respect to any contract, instrument, release, indenture or
other agreement or document created in connection with the Plan, the Debtors,
Reorganized CMI, Reorganized CMM or Reorganized Holdings, as the case may be,
may, pursuant to Section 553 or Section 502(d) 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 Debtors, Reorganized CMI, Reorganized
CMM or Reorganized Holdings may hold against the Holder of such Allowed Claim;
provided, however, that neither the failure to effect such a setoff nor the
allowance of any Claim hereunder shall constitute a waiver or release by the
Debtors, Reorganized CMI, Reorganized CMM or Reorganized Holdings of any such
<PAGE>35
claims, rights and causes of action that the Debtors, Reorganized CMI,
Reorganized CMM or Reorganized Holdings may possess against such Holder.
VI. INDIVIDUAL HOLDER PROOFS OF INTEREST
Holders of Interests in Classes A15, A17, A19, A21, A22, B7 and C7 are not
required to File proofs of Interests unless they disagree with the number of
shares set forth on the applicable stock register.
VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. Assumptions.
Except as otherwise provided herein, on the Effective Date, pursuant to
Section 365 of the Bankruptcy Code, the Debtors will assume each executory
contract and unexpired lease entered into by the Debtors prior to the Petition
Date that has not previously (a) expired or terminated pursuant to its own terms
or (b) been assumed or rejected pursuant to Section 365 of the Bankruptcy Code.
The Confirmation Order will constitute an Order of the Bankruptcy Court
approving the assumptions described in this Section VII.A, pursuant to Section
365 of the Bankruptcy Code, as of the Effective Date.
B. Cure of Defaults in Connection with Assumption.
Any monetary amounts by which each executory contract or unexpired lease to
be assumed pursuant to the Plan is in default will be satisfied, pursuant to
Section 365 (b) (1) of the Bankruptcy Code, at the option of the Debtors,
Reorganized CMI, Reorganized CMM or Reorganized Holdings, as the case may be:
(a) by payment of the default amount in Cash on the Effective Date or as soon as
practicable thereafter; or (b) on such other terms as are agreed to by the
parties to such executory contract or unexpired lease.
If there is a dispute regarding: (i) the amount of any cure payments; (ii)
the ability of Reorganized CMI, Reorganized CMM or Reorganized Holdings 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 (iii) any other matter pertaining to assumption, the cure payments 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.
C. Rejections.
Except as otherwise provided herein, on the Effective Date, pursuant to
Section 365 of the Bankruptcy Code, the Debtors will reject each of the
executory contracts and unexpired leases listed on a schedule to be filed prior
to the Confirmation Hearing (the "CONTRACT REJECTION SCHEDULE"); provided,
however, that the Debtors reserve the right, at any time prior to the Effective
Date, to amend such schedule to delete any executory contract or unexpired lease
listed therein, thus providing for its assumption pursuant to Sections VII.A and
B above. Each contract and lease listed on the Contract Rejection Schedule will
be rejected only to the extent that any such contract or lease constitutes an
executory contract or unexpired lease.
<PAGE>36
Listing a contract or lease on the Contract Rejection Schedule does not
constitute an admission by the Debtors, Reorganized CMI, Reorganized CMM or
Reorganized Holdings that such contract or lease is an executory contract
or unexpired lease or that the Debtors, Reorganized CMI, Reorganized
CMM or Reorganized Holdings has any liability thereunder. The Confirmation
Order shall 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.
If the rejection of an executory contract or unexpired lease pursuant to
the preceding Section VII.C gives rise to a Claim by the other party or parties
to such contract or lease, such Claim shall be forever barred and shall not be
enforceable against the Debtors, Reorganized CMI, Reorganized CMM or Reorganized
Holdings, their successors or properties unless (a) a stipulation with respect
to the amount and nature of such Claim has been entered into by either of the
Debtors, Reorganized CMI, Reorganized CMM or Reorganized Holdings, as
applicable, and the Holder of such Claim in connection with the rejection of
such executory contract or unexpired lease, or (b) a Proof of Claim is Filed and
served on Reorganized CMI, Reorganized CMM or Reorganized Holdings, as the case
may be, and counsel for Reorganized CMI, Reorganized CMM or Reorganized
Holdings, as the case may be, within 30 days after the Effective Date or such
earlier date as established by the Bankruptcy Court. Unless otherwise ordered by
the Bankruptcy Court. all Allowed Claims arising from the rejection of executory
contracts or unexpired leases shall be treated as Claims in Class A10, B5 or C5,
as applicable.
VIII. ACCEPTANCE OR REJECTION OF THE PLAN
A. Voting Classes.
The Holders of Allowed Claims and Interests in Classes A1, A2, A3, A4, A5,
A6, A7, A9, A10, A11, A13, A15, A21, B1, B2, B5, B6, C1, C2, C4, C5 and C6 are
Impaired and shall be entitled to vote to accept or reject the Plan.
B. Presumed Acceptances of Plan.
The Holders of Allowed Claims and Interests in Classes A8, A12, A14, A16,
A17, A18, A19, A20, A22, A23, B3, B4, B7, C3 and C7 are not Impaired under the
Plan and, therefore, are conclusively presumed to accept the Plan.
C. Confirmability of Plan and Cramdown
To the extent that any Impaired Class votes to reject the Plan or is deemed
to have rejected the Plan, the Debtors will request that the Bankruptcy Court
confirm the Plan under the "cramdown" provisions of Section 1129(b) of the
Bankruptcy Code.
<PAGE>37
IX. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN
A. Corporate Structure.
On the Effective Date, CMI will become Reorganized CMI, CMM will become
Reorganized CMM, and Holdings will became Reorganized Holdings. Reorganized CMM
will be a wholly-owned subsidiary of Reorganized CMI, and Reorganized CMI will
be the general partner of Reorganized Holdings.
B. Corporate Action.
1. Cancellation of Old Securities and Related Agreements.
On the Effective Date, except as otherwise provided by the Plan all
securities, instruments, indentures and agreements governing any Claims or
Interests with respect to the Old Securities shall be deemed terminated,
canceled and extinguished, and except as otherwise provided herein, the Debtors
and the Reorganized Debtors shall be released from any and all obligations under
such securities, instruments, indentures and agreements.
2. Articles of Incorporation and Bylaws for Reorganized CMI.
On the Effective Date, Reorganized CMI shall be deemed to have adopted the
Reorganized CMI Articles of Incorporation and the Reorganized CMI Bylaws
pursuant to applicable nonbankruptcy law and Section 1123(a)(5)(I) of the
Bankruptcy Code. The Reorganized CMI Articles of Incorporation will, among other
provisions, increase the number of authorized shares of common stock and
prohibit the issuance of nonvoting equity securities to the extent required by
Section 1123 (a) (6) of the Bankruptcy Code. The Reorganized CMI Articles of
Incorporation and the Reorganized CMI Bylaws will become effective, without any
requirement of further action by stockholders of CMI or Reorganized CMI, on the
Effective Date. The Reorganized CMI Articles of Incorporation shall be filed
with the Maryland Department of Assessments and Taxation on the Effective Date.
3. Articles of Incorporation and Bylaws for Reorganized CMM.
On the Effective Date, Reorganized CMM shall be deemed to have adopted the
Reorganized CMM Articles of Incorporation and the Reorganized CMM Bylaws
pursuant to applicable non-bankruptcy law and Section 1123(a)(5)(I) of the
Bankruptcy Code. The Reorganized CMM Articles of Incorporation will, among other
provisions, prohibit the issuance of nonvoting equity securities to the extent
required by Section 1123 (a) (6) of the Bankruptcy Code. The Reorganized CMM
Articles of Incorporation and the Reorganized CMM Bylaws will become effective,
without any requirement of further action by the stockholder of CMM or
Reorganized CMM, on the Effective Date. The Reorganized CMM Articles of
Incorporation (if applicable) shall be filed with the Maryland Department of
Assessments and Taxation on the Effective Date.
<PAGE>38
4. Directors and Management of Reorganized CMI.
As of the Effective Date, the Persons identified at or before the
Confirmation Hearing in a schedule to be filed jointly by CMI and the Buyer with
the Bankruptcy Court will serve as the initial members of the Board of Directors
of Reorganized CMI. Such Persons shall be deemed elected to the Board of
Directors of CMI, and such elections shall be deemed effective as of the
Effective Date, without any requirement of further action by stockholders of CMI
or Reorganized CMI. The initial officers of Reorganized CMI shall be selected by
the Board of Directors of Reorganized CMI and their names will be disclosed in a
schedule to be Filed with the Bankruptcy Court at or before the Confirmation
Hearing. Subject to any requirement of Bankruptcy Court approval under Section
1129(a)(5) of the Bankruptcy Code, those persons identified or designated as
directors and officers of Reorganized CMI in the schedule to be Filed with the
Bankruptcy Court at or before the Confirmation Hearing shall assume their
offices as of the Effective Date and shall continue to serve in such capacities
thereafter, pending further action of the Board of Directors or stockholders of
Reorganized CMI in accordance with the Reorganized CMI Bylaws, Reorganized CMI
Articles of Incorporation and applicable state law.
5. Directors and Management of Reorganized CMM and Reorganized
Holdings.
As of the Effective Date, the Persons identified at or before the
Confirmation Hearing in a schedule to be filed jointly by CMM and the Buyer with
the Bankruptcy Court will serve as the initial members of the Board of Directors
of Reorganized CMM. Such Persons shall be deemed elected to the Board of
Directors of CMM, and such elections shall be deemed effective as of the
Effective Date, without any requirement of further action by stockholders of CMM
or Reorganized CMM. The initial officers of Reorganized CMM shall be selected by
the Board of Directors of Reorganized CMM and their names will be disclosed in a
schedule to be Filed with the Bankruptcy Court at or before the Confirmation
Hearing. Subject to any requirement of Bankruptcy Court approval under Section
1129(a)(5) of the Bankruptcy Code, those persons identified or designated as
directors and officers of Reorganized CMM in the schedule to be Filed with the
Bankruptcy Court at or before the Confirmation Hearing shall assume their
offices as of the Effective Date and shall continue to serve in such capacities
thereafter, pending further action of the Board of Directors or the stockholder
of Reorganized CMM in accordance with the Reorganized CMM Bylaws, Reorganized
CMM Articles of Incorporation and applicable state law.
As of the Effective Date, Reorganized CMI shall remain the sole general
partner of Reorganized Holdings and CMSLP shall remain the sole limited partner
in Reorganized Holdings. It is contemplated that at some time after the
Effective Date, Reorganized Holdings will be dissolved unless the partners in
Reorganized Holdings otherwise determine.
C. Implementation.
The Debtors, Reorganized CMI, Reorganized CMM and Reorganized Holdings are
hereby authorized and directed to take all necessary steps, and perform all
necessary acts, to consummate the terms and conditions of the Plan and the Stock
Purchase Agreement on and after the Effective Date. On or before the Effective
Date, the Debtors may file with the Bankruptcy Court such agreements and other
documents as may be necessary or appropriate to effectuate or
<PAGE>39
further evidence the terms and conditions of this Plan and the other
agreements referred to herein or contemplated hereby.
D. Other Documents and Actions.
The Debtors, Reorganized CMI, Reorganized CMM and Reorganized Holdings, as
the case may be, may and shall execute such documents and take such other
actions as are necessary or appropriate to effectuate this Plan, the
transactions provided for in the Plan and all other actions in connection
herewith.
E. Term of Injunctions or Stays.
Unless provided in the Confirmation Order or otherwise, all injunctions or
stays imposed in the Reorganization Cases pursuant to Sections 105 and 362 of
the Bankruptcy Code or otherwise in effect on the Confirmation Date shall remain
in full force and effect until the Effective Date.
F. No Interest.
Except as expressly provided herein, no Holder of an Allowed Claim or
Allowed Interest shall receive interest on the distribution to which such Holder
is entitled hereunder, regardless of whether such distribution is made on the
Effective Date or thereafter.
G. Retiree Benefits.
On and after the Effective Date, to the extent required by Section
1129(a)(13) of the Bankruptcy Code, Reorganized CMI, Reorganized CMM or
Reorganized Holdings, as the case may be, shall continue to pay all retiree
benefits (if any), as the term "retiree benefits" is defined in Section 1114(a)
of the Bankruptcy Code, maintained or established by the Debtors prior to the
Confirmation Date.
H. Recapitalization Financing Including Issuance of New Securities.
On the Effective Date, the Recapitalization Financing shall be funded and
become effective and the CMBS Sale Portfolio, if not already sold, shall be sold
as parts of effectuating consummation of the Plan consistent with the Stock
Purchase Agreement and the respective governing documents. Among other things,
the Equity Purchaser will, on the Effective Date, provide the New Equity as
required under the Stock Purchase Agreement in accordance with the terms
thereof, and the Equity Purchaser will receive its shares of New Senior
Preferred Stock and Warrants (under certain circumstances) as provided in the
Stock Purchase Agreement. On the Effective Date, Reorganized CMI will issue the
New Securities in accordance with the Plan and consistent with the Stock
Purchase Agreement. In addition, on the Effective Date, the Reorganized Debtors
will implement and, to the extent applicable, receive the proceeds of the New
Debt in accordance with the terms of the applicable documents with respect
thereto. On or before the Effective Date, the Board of Directors of CMI (as it
exists before the Effective Date) shall determine whether or not to proceed with
a Rights Offering to the Holders of Old CMI Common Stock in accordance with the
Stock Purchase Agreement. On the Effective Date, all
<PAGE>40
securities, instruments, corporate documents, and agreements entered into
pursuant to or contemplated by the Plan and/or the Stock Purchase
Agreement, including, without limitation, the New Securities, any other
security and any instrument, corporate document, or agreement entered into in
connection with any of the transactions referenced in this Section or
Section IX.I, shall become effective, binding and enforceable in accordance
with their respective terms and conditions upon the parties thereto without
further act or action under applicable law, regulation, order or rule, and
shall be deemed to become effective simultaneously.
I. Sale of the CMBS Sale Portfolio.
On or before the Effective Date, the commercial mortgage-backed securities
and any other assets in the CMBS Sale Portfolio shall be sold in accordance with
the terms of the Stock Purchase Agreement. The proceeds thereof shall be used as
part of the funding of the Plan.
X. CONFIRMATION AND EFFECTIVE DATE CONDITIONS
A. Conditions to Confirmation.
Confirmation of this Plan is conditioned upon satisfaction of the
applicable provisions of Section 1129 of the Bankruptcy Code and entry of a
Confirmation Order by the Bankruptcy Court in form and substance satisfactory to
the Debtors and the Buyer. Among other things, the Confirmation Order shall
authorize and direct that the Debtors, Reorganized CMI, Reorganized CMM and
Reorganized Holdings take all actions necessary or appropriate to enter into,
implement and consummate the contracts, instruments, releases, leases,
indentures and other agreements or documents created in connection with or
contemplated by the Plan, including, but not limited to, those actions
contemplated by the provisions of this Plan set forth in Section XI hereof, and
shall provide that all securities to be issued to Holders of Claims and
Interests pursuant to the Plan, and securities issuable upon the exercise of
Rights issued pursuant to the Plan and conversion provisions relating thereto,
are exempt from registration pursuant to Section 1145 of the Bankruptcy Code and
that the solicitation of Holders of Old CMI Common Stock, Old Series B Preferred
Stock and Old Senior Notes is exempt under Rule 14a-2(a)(4) of the proxy
regulations under the Securities Exchange Act of 1934. In addition, it shall be
a condition to confirmation that the Stock Purchase Agreement shall not have
been terminated, that the Securities Purchase Agreement and all exhibits and
schedules thereto are approved by the Bankruptcy Court and are enforceable in
accordance with their terms and that all stock to be issued pursuant to the
Stock Purchase Agreement and this Plan is authorized, validly issued, and free
and clear of any and all liens, claims and encumbrances of or against the
Debtors or the Reorganized Debtors.
B. Conditions to Effective Date.
The Effective Date will not occur and the Plan will not be consummated
unless and until each of the following conditions has been satisfied or waived
by the Debtors:
1. The Confirmation Order in form and substance satisfactory to the
Debtors and the Buyer and entered by the Bankruptcy Court shall not have been
modified in any respect.
<PAGE>41
2. All conditions to closing under the Stock Purchase Agreement
shall have been satisfied or waived as provided therein and closing under the
Stock Purchase Agreement shall have occurred.
3. The Recapitalization Financing shall be funded in accordance
with the terms of the Stock Purchase Agreement, the Plan and the respective
governing documents with respect to the Recapitalization Financing, and the
sale of the CMBS Sale Portfolio shall have been completed in accordance with
the terms of the Stock Purchase Agreement.
4. All other actions and documents necessary to implement the
transactions contemplated at closing under the Stock Purchase Agreement and
contemplated to be effected under this Plan on or before the Effective Date
shall have been effected or executed or, if waivable, waived by the Person
or Persons entitled to the benefit thereof.
C. Waiver of Conditions to Effective Date.
Each of the conditions to the Effective Date may be waived in whole or in
part by the Debtors and the Buyer at any time, without notice or an Order of the
Bankruptcy Court.
XI. EFFECTS OF PLAN CONFIRMATION
A. Discharge of Debtors and Injunction.
Except as otherwise provided in the Plan or the Confirmation Order: (i) on
the Effective Date, the Debtors shall be deemed discharged and released to the
fullest extent permitted by Section 1141 of the Bankruptcy Code from all Claims
and Interests, including, but not limited to, demands, liabilities, Claims and
Interests that arose before the Effective Date and all debts of the kind
specified in Sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether
or not (a) a proof of Claim or proof of Interest based on such debt or Interest
is Filed or deemed Filed pursuant to Section 501 of the Bankruptcy Code, (b) a
Claim or Interest based on such debt or Interest is allowed pursuant to Section
502 of the Bankruptcy Code, or (c) the Holder of a Claim or Interest based on
such debt or Interest has accepted the Plan; and (ii) all Persons shall be
precluded from asserting against Reorganized CMI, Reorganized CMM and
Reorganized Holdings, their respective successors, or their respective assets or
properties any other or further Claims or Interests based upon any act or
omission, transaction, or other activity of any kind or nature that occurred
prior to the Effective Date. Except as otherwise provided in the Plan, the
Confirmation Order shall act as a discharge of any and all Claims against and
all debts and liabilities of the Debtors, as provided in Sections 524 and 1141
of the Bankruptcy Code, and such discharge shall void any judgment against the
Debtors at any time obtained to the extent that it relates to a Claim
discharged.
Except as otherwise provided in the Plan or the Confirmation Order, on and
after the Effective Date, all Persons who have held, currently hold or may hold
a debt, Claim or Interest discharged pursuant to the terms of the Plan are
permanently enjoined from taking any of the following actions on account of any
such discharged debt, Claim or Interest: (i) commencing or continuing in any
manner any action or other proceeding against the Debtors, Reorganized CMI,
Reorganized CMM or Reorganized Holdings, or their respective successors or their
respective
<PAGE>42
properties; (ii) enforcing, attaching, collecting or recovering in any
manner any judgment, award, decree or order against the Debtors,
Reorganized CMI, Reorganized CMM or Reorganized Holdings, or their
respective successors or their respective properties; (iii) creating,
perfecting or enforcing any lien or encumbrance against the Debtors,
Reorganized CMI, Reorganized CMM or Reorganized Holdings, or their respective
successors or their respective properties; and (iv) 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 or the Confirmation Order. Any
Person, including but not limited to the Debtors, Reorganized CMI,
Reorganized CMM or Reorganized Holdings, injured by any willful violation of
such injunction shall recover actual damages, including costs and attorneys'
fees, and, in appropriate circumstances, may recover punitive damages, from the
willful violator.
B. Limitation of Liability.
None of the Debtors, Reorganized CMI, Reorganized CMM or Reorganized
Holdings, the members of the Committees, the Indenture Trustee, the Equity
Purchaser, or any of their respective employees, officers, directors, agents, or
representatives, or any professional persons employed by any of them (including,
without limitation, their respective Designated Professionals), shall have any
responsibility, or have or incur any liability, to any Person whatsoever (i) for
any matter expressly approved or directed by the Confirmation Order or (ii)
under any theory of liability (except for any claim based upon willful
misconduct or gross negligence) for any act taken or omission made in good faith
directly related to formulating, implementing, confirming, or consummating the
Plan, the Disclosure Statement, or any contract, instrument, release or other
agreement or document created in connection with or contemplated by the Plan;
provided, that nothing in this Section XI.B shall limit the liability of any
Person for breach of any express obligation it has under the terms of this Plan,
under the Equity Purchase Agreement or any documents executed in connection
therewith or pursuant thereto, or under any other agreement or document entered
into by such Person in accordance with or pursuant to the terms of this Plan
(except to the extent expressly provided in the Confirmation Order) or for any
breach of a duty of care owed to any other Person occurring after the Effective
Date.
C. Releases.
On the Effective Date, each of the Debtors shall release unconditionally,
and hereby is deemed to release unconditionally (i) each of the Debtors'
then-current and former officers, directors, shareholders, employees,
consultants, attorneys, accountants, financial advisors and other
representatives (solely in their capacities as such) (collectively, the "DEBTOR
RELEASEES"), (ii) the Committees and, solely in their capacity as members or
representatives of the Committees, each member, consultant, attorney,
accountant, financial advisor or other representative of the Committees
(collectively, the "COMMITTEE RELEASEES") and (iii) the Equity Purchaser and,
solely in their capacities as such, all officers, directors, shareholders,
members, employees, consultants, attorneys, accountants or other representatives
thereof (the "EQUITY PURCHASER RELEASEES") from any and all claims, obligations,
suits, judgments, damages, rights, causes of action and liabilities whatsoever,
whether known or unknown, foreseen or unforeseen, existing or hereafter arising,
in law, equity or otherwise, based in whole or in part upon any act or omission,
transaction, event or other occurrence taking place on or prior to the Effective
Date in any way relating to the Reorganization Cases, the Plan or the
<PAGE>43
Disclosure Statement; provided, however, that the release of the Equity
Purchaser Releasees as set forth herein shall not extend to or include any
rights or obligations of any of the Equity Purchaser Releasees under or or
pursuant to the Stock Purchase Agreement, all of which rights and obligations
shall survive in accordance with the terms of the Stock Purchase Agreement.
On the Effective Date, each Holder of a Claim or Interest shall be deemed
to have unconditionally released the Debtor Releasees, the Committee Releasees
and the Equity Purchaser Releasees from any and all claims, obligations, suits,
judgments, damages, rights, causes of action and liabilities whatsoever which
any such holder may be entitled to assert, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, in law, equity or otherwise, based in
whole or in part upon any act or omission, transaction, event or other
occurrence taking place on or prior to the Effective Date in any way relating to
CMI, CMM and/or Holdings, the Debtors, the Reorganization Cases, the Plan or the
Disclosure Statement, excepting, however, from such release any obligation owing
to a Holder of an Allowed Claim or Allowed Interest provided for in this Plan or
the Confirmation Order.
D. Indemnification.
The obligations of the Debtors as of the Petition Date to indemnify their
present and former directors or officers, respectively, against any obligations
pursuant to the Debtors' articles of incorporation, by-laws, applicable state
law or specific agreement or resolution, or any combination of the foregoing,
shall survive confirmation of the Plan, remain unaffected thereby, be assumed by
Reorganized CMI, Reorganized CMM or Reorganized Holdings, as the case may be,
and not be discharged. The Debtors shall fully indemnify, and Reorganized CMI,
Reorganized CMM or Reorganized Holdings, as the case may be, shall assume the
Debtors' obligations to indemnify, any person by reason of the fact that he or
she is or was serving as a director, officer, employee, agent, professional,
member, or other authorized representative (in each case, as applicable) of any
of the Debtors (collectively, the "INDEMNITEES") against any claims,
liabilities, actions, suits, damages, fines, judgments or expenses (including
reasonable attorneys' fees and expenses), arising during the course of, or
otherwise in connection with or in any way related to, the negotiation,
preparation, formulation, solicitation, dissemination, implementation,
confirmation and consummation of the Plan and the transactions contemplated
thereby and the Disclosure Statement in support thereof, provided, however, that
the foregoing indemnification shall not apply to any liabilities arising from
the gross negligence or willful misconduct of any Indemnitee. If any claim,
action or proceeding is brought or asserted against an Indemnitee in respect of
which indemnity may be sought from Reorganized CMI, Reorganized CMM or
Reorganized Holdings, the Indemnitee shall promptly notify Reorganized CMI, in
writing and, in any such event, Reorganized CMI shall assume the defense thereof
including the employment of counsel reasonably satisfactory to the Indemnitee,
and the payment of all expenses of such Indemnitee. The Indemnitee shall have
the right to employ separate counsel in any such claim, action or proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnitee unless (a) Reorganized CMI has agreed
to pay the fees and expenses of such counsel, or (b) Reorganized CMI shall have
failed to assume promptly the defense of such claim, action or proceeding or to
employ counsel reasonably satisfactory to the Indemnitee in any such claim
action or proceeding, or (c) the named parties in any such claim, action or
proceeding (including any impleaded parties) include both the Indemnitee and
Reorganized CMI, Reorganized CMM or Reorganized
<PAGE>44
Holdings, as the case may be, and the Indemnitee believes, in the exercise
of its business judgment and in the opinion of its legal counsel, reasonably
satisfactory to Reorganized CMI, that the joint representation of Reorganized
CMI, Reorganized CMM or Reorganized Holdings, as the case may be, and the
Indemnitee will likely result in a conflict of interest (in which case, if the
Indemnitee notifies Reorganized CMI in writing that it elects to employ
separate counsel at the expense of Reorganized CMI, Reorganized CMI shall
not have the right to assume the defense of such action or proceeding on
behalf of the Indemnitee). In addition, neither Reorganized CMI, nor
Reorganized CMM nor Reorganized Holdings shall effect any settlement or
release from liability in connection with any matter for which the
Indemnitee would have the right to indemnification from Reorganized CMI,
Reorganized CMM or Reorganized Holdings unless such settlement contains a full
and unconditional release of the Indemnitee, or a release of the Indemnitee
reasonably satisfactory in form and substance to the Indemnitee.
E. Vesting of Assets.
Except as otherwise provided in the Plan or the Confirmation Order, on the
Effective Date, all property of CMI's Estate shall vest in Reorganized CMI and
all property of CMM's Estate shall vest in Reorganized CMM and all property of
Holdings' estate shall vest in Reorganized Holdings, all free and clear of all
Claims, liens, encumbrances and Interests of Holders of Claims and Holders of
Old Securities. From and after the Effective Date, Reorganized CMI, Reorganized
CMM and Reorganized Holdings may operate their business and use, acquire and
dispose of property and settle and compromise claims or interests arising on or
after the Effective Date without supervision by the Bankruptcy Court and free of
any restrictions of the Bankruptcy Code, the Bankruptcy Rules or the Local
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan or
the Confirmation Order.
F. Preservation of Causes of Action.
Except as otherwise provided herein, or in any contract, instrument,
release or other agreement entered into in connection with or pursuant to the
Plan, Reorganized CMI, Reorganized CMM and Reorganized Holdings shall retain
(and may enforce) any claims, rights and causes of action that the Debtors or
the Estates may hold against any Person, including, but not limited to, any
claims, rights or causes of action under Sections 544 through 550 of the
Bankruptcy Code or any similar provisions of state law, or any other statute or
legal theory.
G. Retention of Bankruptcy Court Jurisdiction.
To the maximum extent permitted by the Bankruptcy Code and other applicable
law, the Bankruptcy Court shall have jurisdiction of all matters arising out of,
and related to, the Reorganization Cases and the Plan pursuant to, and for the
purpose of, Sections 105(a) and 1142 of the Bankruptcy Code, including, without
limitation, jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim or
Interest, including the resolution of any request for payment of any
Administrative Claim, the resolution of any objections to the allowance or
priority of Claims or Interests and the resolution of any dispute as to the
treatment necessary to Reinstate a Claim pursuant to the Plan;
<PAGE>45
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 before the Effective Date;
3. Resolve any matters related to the assumption or rejection of any
executory contract or unexpired lease to which any of the Debtors is a party
or with respect to which any of the Debtors may be liable, and to hear,
determine and, if necessary, liquidate any Claims arising therefrom;
4. Ensure that distributions to Holders of Allowed Claims or Allowed
Interests are accomplished pursuant to the provisions of the Plan;
5. Decide or resolve any motions, adversary proceedings, contested
or litigated matters and any other matters and grant or deny any applications
involving the Debtors, Reorganized CMI, Reorganized CMM or Reorganized
Holdings that may be pending on the Effective Date;
6. Enter such Orders as may be necessary or appropriate to implement
or consummate the provisions of the Plan and all contracts, instruments,
releases, indentures and other agreements or documents created in connection
with or pursuant to the Plan, the Disclosure Statement or the Confirmation
Order, except as otherwise provided herein;
7. Resolve any cases, controversies, suits or disputes that may arise
in connection with the consummation, interpretation or enforcement of the
Plan or the Confirmation Order, including the release and injunction
provisions set forth in and contemplated by the Plan and the Confirmation
Order, or any entity's rights arising under or obligations incurred in
connection with this Plan or the Confirmation Order;
8. Enter such Orders as may be necessary or appropriate to correct
any defect, cure any omission, or reconcile any inconsistency in this Plan
or the Confirmation Order as may be necessary to carry out the purposes and
intent of this Plan;
9. Enter such Orders as may be necessary or appropriate to enforce,
implement or interpret the terms and conditions of this Plan and resolve any
objections filed with respect to any actions proposed to be taken in
connection with or pursuant to the provisions of this Plan;
10. Enter such Orders as may be necessary or appropriate to approve
agreements, settlements or compromises in connection with matters pending on
the Effective Date or arising thereafter in connection with implementation of
provisions of the Plan;
11. Determine all adversary proceedings and contested matters to
recover or enforce rights with respect to property of any of the Debtors or
their Estates or to obtain other relief relating to causes of actions or
claims under the Bankruptcy Code or other applicable law including, but
not limited to, any actions brought under Sections 541 through 553 of the
Bankruptcy Code;
12. Determine matters concerning state, local or federal taxes
pursuant to Sections 346, 505, 525, 1146 and any other tax-related provisions of
the Bankruptcy Code;
<PAGE>46
13. Enter such Orders as may be necessary or appropriate to enforce
and interpret the provisions of the Confirmation Order;
14. Subject to any restrictions on modifications provided herein or in
any contract, instrument, release, indenture or other agreement or document
created in connection with the Plan, modify this Plan before or after the
Effective Date pursuant to Section 1127 of the Bankruptcy Code or modify
the Disclosure Statement, the Confirmation Order or any contract,
instrument, release, indenture or other agreement or document created in
connection with or pursuant to the Plan, the Disclosure Statement or the
Confirmation Order, or remedy any defect or omission or reconcile any
inconsistency in any Bankruptcy Court Order, this Plan, the Disclosure
Statement, the Confirmation Order or any contract, instrument, release,
indenture or other agreement or document created in connection with or pursuant
to the Plan, the Disclosure Statement or the Confirmation Order, in such
manner as may be necessary or appropriate to consummate this Plan, to the extent
authorized by the Bankruptcy Code;
15. Issue injunctions, 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;
16. Enter and implement such Orders as are necessary or appropriate
if the Confirmation Order is for any reason modified, stayed, reversed,
revoked or vacated;
17. Except as otherwise provided in this Plan, or with respect to
specific matters, in the Confirmation Order or any other Order entered in
connection with the Reorganization Cases, determine any other matters that
may arise in connection with or relating to the Plan, the Disclosure
Statement, the Confirmation Order or any contract, instrument, release,
indenture or other agreement or document created in connection with or pursuant
to this Plan, the Disclosure Statement or the Confirmation Order; and
18. Enter an Order or Orders closing the Reorganization Cases.
H. Failure of Bankruptcy Court to Exercise Jurisdiction.
If the Bankruptcy Court abstains from exercising or declines to exercise
jurisdiction, or is otherwise without jurisdiction over any matter arising out
of the Reorganization Cases, including the matters set forth in Section XI.G
above, Section XI.G shall not prohibit or limit the exercise of jurisdiction by
any other court having competent jurisdiction with respect to such matter.
I. Committees.
On the Effective Date, all Committees, shall be dissolved and the members
of such Committees and their professionals shall be released and discharged from
all further rights and duties arising from or related to the Reorganization
Cases. The professionals retained by such Committees and the members thereof
shall not be entitled to compensation or reimbursement of expenses incurred for
services rendered after the Effective Date other than for services rendered in
connection with any application for allowance of compensation and reimbursement
of expenses pending as of, or timely Filed after, the Effective Date.
<PAGE>47
XII. MISCELLANEOUS PROVISIONS
A. Final Order.
Any requirement in this Plan that an Order be a Final Order may be waived
by the Debtors (or Reorganized Debtors, if applicable) and the Buyer; provided,
that nothing contained herein or elsewhere in this Plan shall prejudice the
right of any party in interest to seek a stay pending appeal with respect to
such order.
B. Modification of the Plan.
The Debtors reserve the right to modify the Plan in any manner consistent
with the Stock Purchase Agreement at any time prior to the Confirmation Date as
provided for by Section 1127 of the Bankruptcy Code or as otherwise permitted by
law without additional disclosure pursuant to Section 1125 of the Bankruptcy
Code, except as the Bankruptcy Court may otherwise order.
If, after receiving sufficient acceptances but prior to Confirmation of the
Plan, the Debtors seek to modify the Plan, the Debtors can use such previously
solicited acceptances only to the extent permitted by applicable law.
The Debtors reserve the right after the Confirmation Date and before the
Effective Date to modify the terms of the Plan or waive any conditions to the
effectiveness thereof if and to the extent the Debtors and the Buyer determine
that such modifications or waivers are necessary or desirable to consummate the
Plan. The Debtors will give such Holders of Claims and Interests notice of such
modifications or waivers as may be required by applicable law and the Bankruptcy
Court, and any such modifications shall be subject to the approval of the
Bankruptcy Court to the extent required by, and in accordance with, Section 1127
of the Bankruptcy Code.
C. Revocation of the Plan.
The Debtors reserve the right to revoke or withdraw the Plan prior to the
Confirmation Date. If the Debtors revoke or withdraw the Plan, or if
Confirmation does not occur, then the Plan shall be null and void, and all of
the Debtors' respective obligations with respect to the Claims and Interests
shall remain unchanged and nothing contained herein or in the Disclosure
Statement shall be deemed an admission or statement against interest or to
constitute a waiver or release of any claims by or against either Debtor or any
other Person or to prejudice in any manner the rights of either Debtor or any
Person in any further proceedings involving either Debtor or any Person.
D. Application of Section 1145 of the Bankruptcy Code and Federal
Securities Laws.
All securities to be issued to Holders of Claims and Interests pursuant to
the Plan, and securities issuable upon the exercise of Rights issued pursuant to
the Plan and conversion provisions relating thereto, including but not limited
to the New CMI Common Stock, the New Series B Preferred Stock, the New Notes,
the Stockholder Preferred Stock, the Rights and the Stock Options, shall be
exempt from registration pursuant to Section 1145 of the Bankruptcy Code. The
solicitation of Holders of Old CMI Common Stock, Old Series B Preferred Stock
and
<PAGE>48
Old Senior Notes shall be exempt under Rule 14a-2(a)(4) of the proxy
regulations under the Securities Exchange Act of 1934.
E. Application of Section 1146(c) of the Bankruptcy Code.
The implementation and enforcement of any provisions of the Plan
transferring assets or property, including but not limited to sales of the
commercial mortgage-backed securities and any other property in the CMBS Sale
Portfolio, and the making, delivery or recording of any "instrument of transfer"
in connection with or pursuant to the Plan, shall not be taxed under any law
imposing a stamp tax, transfer tax or a similar tax pursuant to Section 1146(c)
of the Bankruptcy Code.
F. Successors and Assigns.
The rights, benefits and obligations of any Person named or referred to in
the Plan shall be binding on, and shall inure to the benefit of, any heir,
executor, trustee, administrator, successor or assign of such Person.
G. Saturday, Sunday or Legal Holiday.
If any payment or act under the Plan is required to be made or performed on
a date that is not a Business Day, then the making of such payment or the
performance of such act may be completed on the next succeeding Business Day,
but shall be deemed to have been completed as of the required date.
H. Post-Effective Date Effect of Evidences of Claims or Interests.
Except as otherwise specified herein, notes, bonds, stock certificates and
other evidences of Claims against or Interests in the Debtors, and all
Instruments of the Debtors (in either case, other than those executed and
delivered as contemplated hereby in connection with the consummation of the
Plan), shall, effective upon the Effective Date, represent only the right to
participate in the distributions contemplated by the Plan.
I. Governing Law.
Unless a rule of law or procedure is supplied by (i) federal law (including
the Bankruptcy Code, the Bankruptcy Rules or the Local Bankruptcy Rules), (ii)
an express choice of law provision in any agreement, contract, instrument, or
document provided for, or executed in connection with, the Plan, or (iii)
applicable non-bankruptcy law, the rights and obligations arising under the Plan
and any agreements, contracts, documents, and instruments executed in connection
with or pursuant to the Plan shall be governed by, and construed and enforced in
accordance with, the laws of the State of Maryland without giving effect to the
principles of conflict of laws thereof.
<PAGE>49
J. No Liability for Solicitation or Participation.
As specified in Section 1125 (e) of the Bankruptcy Code, Persons that
solicit acceptances or rejections of the Plan and/or that participate in the
offer, issuance, sale, or purchase of securities offered or sold under or in
connection with the Plan, in good faith and in compliance with the applicable
provisions of the Bankruptcy Code, shall not be liable, on account of such
solicitation or participation, for violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan
or the offer, issuance, sale, or purchase of securities.
K. No Admissions or Waiver of Objections.
Notwithstanding anything herein to the contrary, if the Effective Date does
not occur, nothing contained in the Plan shall be deemed as an admission by the
Debtors or any other party with respect to any matter set forth herein,
including, without limitation, liability on any Claim or the propriety of any
Claims classification. The Debtors are not bound by any statements herein or in
the Disclosure Statement as judicial admissions.
DATED: September 21, 1999
CRIIMI MAE Inc.
a Maryland corporation
By: /s/ William B. Dockser
----------------------
Name: William B. Dockser
Title: Chairman of the Board
CRIIMI MAE Management, Inc.,
a Maryland corporation
By: /s/ William B. Dockser
----------------------
Name: William B. Dockser
Title: Chairman of the Board
CRIIMI MAE Holdings II, L.P.
a Delaware Limited Partnership
By: CRIIMI MAE Inc.
its General Partner
By: /s/ William B. Dockser
----------------------
Name: William B. Dockser
Title: Chairman of the Board
<PAGE>50
VENABLE, BAETJER AND HOWARD, LLP AKIN, GUMP, STRAUSS HAUER
& FELD L.L.P.
By: /s/ Richard L. Wasserman By: /s/ Stanley J. Samorajczyk, P.C.
------------------------ --------------------------------
Richard L. Wasserman Stanley J. Samorajczyk, P.C.
1800 Mercantile Bank and Michael S. Stamer
Trust Building 1333 New Hampshire Ave., NW
Two Hopkins Plaza Washington, D.C. 20036
Baltimore, Maryland 21201 (202) 887-4000
(410) 244-7400
SHULMAN, ROGERS, GANDAL,
PORDY & ECKER, P.A.
By: /s/ Morton A. Faller
--------------------
Morton A. Faller
11921 Rockville Pike
Third Floor
Rockville, MD 20852-2753
(301) 231-0928
<PAGE>51
EXHIBIT 99
Susan B. Railey
For shareholders and securities brokers
(301) 468-3120
Andrew P. Blocher
For institutional investors
(301) 231-0371
James T. Pastore FOR IMMEDIATE RELEASE
For news media
(202) 546-6451
CRIIMI MAE FILES PLAN OF REORGANIZATION
ROCKVILLE, MD, September 23, 1999 - CRIIMI MAE Inc. (NYSE:CMM) - CRIIMI MAE Inc.
and its affiliates CRIIMI MAE Holdings II, L.P. and CRIIMI MAE Management, Inc.
today filed their Joint Plan of Reorganization (the "Plan") with the United
States Bankruptcy Court, District of Maryland, Greenbelt Division.
The Plan contemplates recapitalization financing of approximately $910 million
consisting of $50 million (up to $61 million under certain circumstances) of a
new series of convertible preferred stock to be purchased by an affiliate of
Apollo Real Estate Advisors IV, L.P. ("Apollo"), approximately $435 million of
debt financing, a portion of which would come from certain existing debtholders,
and $425 million of additional amounts, the bulk of which would result from the
sale of certain commercial mortgage-backed securities ("CMBS").
The Plan provides for full payment in cash of all allowed secured claims of four
creditors. Two secured claim holders would receive partial payment in cash with
the balance evidenced by a new senior secured note.
The Plan also provides for full payment of the Company's allowed unsecured
claims, including the Company's 9-1/8% Senior Notes. Full payment of the allowed
unsecured claims would consist of the payment of 50% of the amount of each
holder's allowed unsecured claim in cash and the issuance of a new note
evidencing the remaining 50% of the amount of such holder's allowed unsecured
claim.
The Plan further provides that holders of Series B Preferred Stock
(NYSE:CMM-PrB) would receive an identical number of shares of new Series B
Preferred Stock, in exchange for their existing Series B Preferred Stock. The
new Series B Preferred Stock would have identical relative rights and
preferences to the existing Series B Preferred Stock except that the dividend
rate would be increased by $.16 per annum to a base dividend of $2.88 per share
or 11.52% and
<PAGE>52
remain at such dividend rate so long as Series B Preferred Stock remains
outstanding. Additionally, for a period of 20 months plus one day after the
date of issuance of the new preferred stock to Apollo, the new Series B
Preferred Stock would be junior with respect to dividend rights and liquidation
preference to the new preferred stock issued as part of the recapitalization
financing of the Plan (i.e., the new preferred stock issued to Apollo and any
new preferred stock issued in connection with a potential Rights Offering).
Thereafter, the new Series B Preferred Stock would rank pari passu with respect
to dividend rights and liquidation preference to all new preferred stock issued
as part of the recapitalization financing of the Plan.
The Plan also contemplates that holders of Common Stock would receive an
identical number of shares of new Common Stock in exchange for their existing
Common Stock plus Rights to purchase shares of a new series of preferred stock
if the Company proceeds with a Rights Offering of up to $11 million.
The Plan further contemplates that holders of Series C and D Preferred Stock
would receive $106 per share in cash, representing the redemption price
contained in the respective governing documents.
"The filing of the Plan, coupled with the recently announced Apollo agreement,
opens the next chapter in the reorganization of CRIIMI MAE," said Chairman
William B. Dockser. "Our goal is to obtain commitments for the remaining
reorganization financing called for by the Plan, solicit acceptance of the Plan
from the parties entitled to vote, obtain confirmation of the Plan from the
Bankruptcy Court, and emerge from Chapter 11."
The Company will file a Current Report on Form 8-K with the Securities and
Exchange Commission, which will include the Plan as an exhibit. The above
discussion of the Plan is qualified in its entirety by reference to the entire
Plan. The Company has previously filed a Form 8-K with the SEC which includes
as an exhibit the Apollo Purchase Agreement and a draft of the Articles
Supplementary to the Articles of Incorporation which sets forth the rights and
preferences (relating to dividends, conversion, redemption, rank, voting, etc)
of the new series of convertible preferred stock to be purchased by Apollo.
On September 20, 1999, the Bankruptcy Court entered an order extending the
Company's right to file a plan of reorganization through October 16, 1999. The
order also provides the Unsecured Creditors' Committee and the Equity Security
Holders' Committee in the Company's Chapter 11 bankruptcy case with the right to
jointly file a plan of reorganization during the same period.
On October 5, 1998, the Company and two affiliates filed for protection under
Chapter 11 of the U.S. Bankruptcy Code. Before filing for reorganization, the
Company had been actively involved in acquiring, originating, securitizing and
servicing multi-family and commercial mortgages and mortgage related assets
throughout the United States. Since filing for Chapter 11 protection, CRIIMI
MAE has suspended its loan origination, loan securitization and CMBS acquisition
businesses. The Company continues to hold a substantial portfolio of
subordinated CMBS and, through its servicing affiliate, acts as a servicer for
its own as well as third party securitizations.
Note: Except for historical information, forward-looking statements contained
in this release involve a variety of risks and uncertainties. These risks and
uncertainties include the continued instability of the capital markets, the
trends in the CMBS market, the ability of the Company to obtain the
reorganization financing called for by the Plan, competitive pressures, the
effect of future losses on CRIIMI MAE's need for liquidity, the effects of the
bankruptcy proceeding on CRIIMI MAE's ongoing business, actions of CRIIMI MAE's
creditors and equity security holders, the ability to obtain bankruptcy court
approval of the Apollo Purchase Agreement including the bidding protection
provisions thereof, the successful completion of due diligence by Apollo, the
satisfaction of all conditions to closing the Apollo Purchase Agreement and the
reorganization financing, the ability to obtain bankruptcy court approval of the
disclosure statement, the confirmation and effectiveness of the Plan, the
possible confirmation of an alternative plan, and the outcome of litigation to
which the Company is a party, as well as the risks and uncertainties that are
set forth from time to time in CRIIMI MAE's reports, including the report on
Form 10-K for the year ended December 31, 1998 and the Form 10-Q for the quarter
ended June 30, 1999.
More information on CRIIMI MAE is available on its website -
www.criimimaeinc.com - or for investors, call Susan Railey, 301-468-3120 or for
news media, call James Pastore, 202-546-6451.
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