<PAGE>
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): December 14, 2000
(November 22, 2000)
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.)
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>
Item 5. Other Events
Attached as exhibits to this Current Report on Form 8-K are (1) the Amended
Praecipe, dated December 8, 2000, filing the Third Amended Joint Plan of
Reorganization (as amended and supplemented by praecipes filed with the
Bankruptcy Court (as defined below) on July 13, 14, 21 and November 22, 2000,
the "Plan") of CRIIMI MAE Inc., CRIIMI MAE Holdings II, L.P. and CRIIMI MAE
Management, Inc. (collectively, the "Debtors"), as confirmed by the United
States Bankruptcy Court for the District of Maryland, Greenbelt Division (the
"Bankruptcy Court") on November 22, 2000; (2) the Order entered by the
Bankruptcy Court on November 22, 2000 confirming the Debtors' Plan; and (3) a
press release issued by the CRIIMI MAE Inc. on November 27, 2000 announcing the
Bankruptcy Court's confirmation of the Debtors' Plan.
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
2.1 Amended Praecipe, dated December 8, 2000, filing Debtors' Plan as
confirmed by the Bankruptcy Court on November 22, 2000.
99.1 Order entered on November 22, 2000 by the Bankruptcy Court confirming
the Debtors' Plan.
99.2 Press release issued by the CRIIMI MAE Inc. on November 27, 2000
announcing the Bankruptcy Court's confirmation of the Plan
<PAGE>
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.
Dated: December 14, 2000 /s/
-----------------------------------------
William B. Dockser, Chairman of the Board
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
-------------------------------------------------------------------------------
*2.1
*99.1
*99.2
*Filed herewith.
<PAGE>
EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE 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)
)
AMENDED PRAECIPE FILING DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
AS CONFIRMED ON NOVEMBER 22, 2000
In accordance with the Order Confirming Debtors' Third Amended Joint Plan
of Reorganization entered on November 22, 2000 (the "Confirmation Order"),
CRIIMI MAE Inc. ("CMI"), CRIIMI MAE Holdings II, L.P. ("Holdings") and CRIIMI
MAE Management, Inc. ("Management") (collectively, the "Debtors") and the
Official Committee of Equity Security Holders of CMI (the "Equity Committee"),
by and through their undersigned counsel, hereby file this Amended Praecipe
Filing Debtors' Third Amended Joint Plan of Reorganization as Confirmed on
November 22, 2000 (the "Plan").
This Amended Praecipe amends and supersedes the Praecipe filed herein on
December 6, 2000 (the "December 6 Praecipe") because Exhibit 1 to the December 6
Praecipe inadvertently omitted the exhibits to the Plan. Exhibit 1 hereto is the
complete
<PAGE>
Plan and all exhibits thereto as confirmed by this Court on November
22, 2000, including modifications approved in the Confirmation Order. Dated:
December ___, 2000. VENABLE, BAETJER AND AKIN, GUMP, STRAUSS, HOWARD, LLP HAUER
& FELD, L.L.P.
By:__________________________ By:_______________________
Richard L. Wasserman Stanley J. Samorajczyk
Federal Bar No. 02784 Federal Bar No. 03113
Carrie B. Weinfeld 1333 New Hampshire Ave., NW
Federal Bar No. 25365 Washington, D.C. 20036
1800 Mercantile Bank and Trust Building (202) 887-4000
Two Hopkins Plaza
Baltimore, Maryland 21201 Co-Counsel for CRIIMI MAE Inc.
(410) 244-7400 and CRIIMI MAE Holdings II, L.P.,
Debtors-in-Possession
Co-Counsel for CRIIMI MAE Inc.
and CRIIMI MAE Holdings II, L.P.,
Debtors-in-Possession
SHULMAN, ROGERS, GANDAL, COVINGTON & BURLING
PORDY & ECKER, P.A.
By:______________________________ By:___________________________
Morton A. Faller Michael St. Patrick Baxter
Federal Bar No. 01488 Federal Bar No. 09694
11921 Rockville Pike Dennis B. Auerbach
Third Floor Federal Bar No. 09290
Rockville, MD 20852-2753 1201 Pennsylvania Avenue, N.W.
(301) 231-0928 Washington, D.C. 20044
(202) 662-6000
Counsel for CRIIMI MAE
Management, Inc., Counsel for the Official Committee
Debtor-in-Possession of Equity Security Holders of
CRIIMI MAE Inc.
<PAGE>
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this _____ day of December, 2000, copies of the
Praecipe Filing Debtors' Third Amended Joint Plan of Reorganization as Confirmed
on November 22, 2000 were sent via first-class mail, postage prepaid, to the
persons on the attached service list.
__________________________
Carrie B. Weinfeld
<PAGE>
Exhibit 99.1
DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
AS CONFIRMED ON NOVEMBER 22, 2000
Exhibit 1
<PAGE>
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' THIRD AMENDED JOINT PLAN OF REORGANIZATION
VENABLE, BAETJER AND HOWARD, LLP AKIN, GUMP, STRAUSS, HAUER
Richard L. Wasserman & FELD, L.L.P.
Gregory A. Cross Stanley J. Samorajczyk, P.C.
1800 Mercantile Bank and Trust Building Michael S. Stamer
Two Hopkins Plaza 1333 New Hampshire Avenue, N.W.
Baltimore, Maryland 21201 Washington, D.C. 20036
(410) 244-7400 (202) 887-4000
Co-Counsel to CRIIMI MAE Inc. Co-Counsel to CRIIMI MAE Inc.
and CRIIMI MAE Holdings II, L.P. and CRIIMI MAE Holdings II, L.P.
SHULMAN, ROGERS, GANDAL, COVINGTON & BURLING
PORDY & ECKER, P.A. Michael St. Patrick Baxter
Morton A. Faller Dennis B. Auerbach
11921 Rockville Pike 1201 Pennsylvania Avenue, N.W.
Third Floor Washington, D.C. 20044
Rockville, MD 20852-2753 (202) 662-6000
(301) 231-0928
Counsel to CRIIMI MAE Management, Inc. Counsel to the Official
Committee of Equity Security
Holders of CRIIMI MAE Inc.,
Co-Proponents of the Plan
Dated: Rockville, Maryland
July 21, 2000
(as amended November 22, 2000)
<PAGE>
TABLE OF CONTENTS
Page
I. INTRODUCTION ..................................................... 2
II. DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION ............ 2
A. Definitions ................................................. 2
1. Administrative Claim ................................... 2
2. Allowed Claim or Allowed Interest ...................... 2
3. Allowed Class . Claim .................................. 3
4. Allowed Class . Interest ............................... 3
5. Allowed Class A1 CMO-IV Claim .......................... 3
6. Bankruptcy Code ........................................ 3
7. Bankruptcy Court ....................................... 3
8. Bankruptcy Rules ....................................... 3
9. Business Day ........................................... 3
10. Cash ................................................... 4
11. Claim................................................... 4
12. Class .................................................. 4
13. Class A1 Cash Payment .................................. 4
14. Class A9/A10 Cash Payment .............................. 4
15. Class A9/A10 Note A .................................... 4
16. Class A9/A10 Note B .................................... 4
17. Class A9/A10 Notes ..................................... 4
18. Clearing Systems ....................................... 4
19. Clerk .................................................. 4
20. CMBS Sale Portfolio .................................... 4
21. CMI .................................................... 4
22. CMI Common Stock ....................................... 4
23. CMI Creditors' Committee ............................... 4
24. CMI Equity Committee ................................... 5
25. CMI General Unsecured Claims ........................... 5
26. CMM .................................................... 5
27. CMM General Unsecured Claims ........................... 5
28. CMO-IV Additional Collateral ........................... 5
29. CMO-IV Bonds ........................................... 5
30. CMSLP .................................................. 5
31. Committees ............................................. 5
32. Company ................................................ 5
33. Confirmation ........................................... 5
34. Confirmation Date ...................................... 5
35. Confirmation Hearing ................................... 5
36. Confirmation Order ..................................... 5
37. Co-Proponent ........................................... 5
38. Debtor Releasees ....................................... 5
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39. Debtors ................................................ 6
40. Debtors in Possession .................................. 6
41. Disbursing Agent ....................................... 6
42. Disclosure Statement ................................... 6
43. Disputed Claim ......................................... 6
44. Disputed Interest ...................................... 6
45. Distribution Record Date ............................... 6
46. Docket ................................................. 6
47. DTC .................................................... 6
48. Effective Date ......................................... 6
49. Eligible Institution ................................... 6
50. Employee Claims ........................................ 6
51. Estates ................................................ 6
52. File, Filed or Filing .................................. 7
53. Final Order ............................................ 7
54. Former Series C Preferred Stock......................... 7
55. Freddie Mac ............................................ 7
56. Freddie Mac Agreement .................................. 7
57. GACC ................................................... 7
58. Guarantee Claims ....................................... 7
59. Holder ................................................. 7
60. Holdings ............................................... 7
61. Holdings General Unsecured Claims ...................... 7
62. Impaired ............................................... 7
63. Indemnitees ............................................ 7
64. Indenture Trustee ...................................... 8
65. Instrument ............................................. 8
66. Insurance Proceeds ..................................... 8
67. Intercompany Claims .................................... 8
68. Interest ............................................... 8
69 Letter of Transmittal .................................. 8
70. LIBOR .................................................. 8
71. Local Bankruptcy Rules ................................. 8
72. Merrill ................................................ 8
73. New Debt ............................................... 8
74. New Equity ............................................. 8
75. New Securities ......................................... 8
76. Old CMI Preferred Stock ................................ 8
77. Old Securities ......................................... 8
78. Old Senior Note Claims ................................. 9
79. Old Senior Notes ....................................... 9
80. Old Series D Preferred Stock ........................... 9
81. Order .................................................. 9
82. Other Secured Claim .................................... 9
83. Person ................................................. 9
84. Petition Date .......................................... 9
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85. Plan ................................................... 9
86. Plan Interest .......................................... 9
87. Plan Rate .............................................. 9
88. Post-Petition Tax Claims ............................... 9
89. Priority Claim ......................................... 10
90. Priority Tax Claim ..................................... 10
91. Pro Rata ............................................... 10
92. Recapitalization Financing ............................. 10
93. Reorganization Cases ................................... 10
94. Reorganized CMI ........................................ 10
95. Reorganized CMI Articles of Incorporation .............. 10
96. Reorganized CMI Bylaws ................................. 10
97. Reorganized CMM ........................................ 10
98. Reorganized CMM Articles of Incorporation .............. 10
99. Reorganized CMM Bylaws ................................. 10
100. Reorganized Debtors .................................... 10
101. Reorganized Holdings ................................... 10
102. Second Amended and Restated Stock Option Plan .......... 11
103. Secured Claim .......................................... 11
104. Securities Claim ....................................... 11
105. Series B Prefererred Stock ............................. 11
106. Series E Prefererred Stock ............................. 11
107. Series F Dividend Preferred Stock ...................... 11
108. Stock Options .......................................... 11
109. Tendered Certificates .................................. 11
110. Tort Claim ............................................. 11
111. UCC .................................................... 11
112. Unimpaired ............................................. 11
113. Unsecured Claim ........................................ 11
114. Voting Record Date ..................................... 12
B. Interpretation and Computation of Time ...................... 12
1. Defined Terms .......................................... 12
2. Rules of Interpretation ................................ 12
3. Time Periods ........................................... 12
III. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS ................... 12
A. CMI Classes ................................................. 13
B. CMM Classes ................................................. 16
C. Holdings Classes ............................................ 17
IV. GENERAL PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS ......... 17
A. Unclassified Claims ......................................... 17
1. Administrative Claims .................................. 17
a. General .......................................... 17
b. Payment of Statutory Fees ........................ 18
2. Priority Tax Claims .................................... 18
3. Bar Date for Administrative Claims ..................... 18
a. General Provisions ............................... 18
<PAGE>
b. Professionals .................................... 19
c. Ordinary Course Liabilities ...................... 19
d. Tax Claims ....................................... 20
B. Identification of Classes of Claims and Interests Impaired and Not
Impaired by the Plan ........................................ 20
1. Claims Against and Interests in CMI .................... 20
2. Claims Against and Interests in CMM .................... 20
3. Claims Against and Interests in Holdings ............... 20
C. Treatment of Claims Against and Interests in CMI ............ 20
1. Class A1 (Citicorp Secured Claims) ..................... 20
2. Class A2 (First Union Secured Claim) ................... 20
3. Class A3 (GACC Secured Claim) .......................... 21
4. Class A4 (Lehman Secured Claim) ........................ 21
5. Class A5 (Merrill Secured Claim) ....................... 21
6. Class A6 (Morgan Stanley Secured Claim) ................ 21
7. Class A7 (Other Secured Claims) ........................ 21
8. Class A8 (Priority Claims) ............................. 21
9. Class A9 (Old Senior Note Claims) ...................... 21
10. Class A10 (CMI General Unsecured Claims) ............... 22
11. Class A11 (Guarantee Claims) ........................... 22
12. Class A12 (Freddie Mac Claims) ......................... 22
13. Class A13 (Intercompany Claims) ........................ 22
14. Class A14 (Series B Preferred Stock) ................... 22
15. Class A15 (Series B Preferred Stock Securities Claims) . 23
16. Class A16 (Former Series C Preferred Stock) ............ 23
17. Class A17 (Former Series C Preferred Stock Securities
Claims) ................................................ 23
18. Class A18 (Old Series D Preferred Stock) ............... 23
19. Class A19 (Old Series D Preferred Stock Securities Claim) 24
20. Class A20 (Series F Dividend Preferred Stock) .......... 24
21. Class A21 (CMI Common Stock) ........................... 24
22. Class A22 (Stock Options) .............................. 24
23. Class A23 (CMI Common Stock Securities Claims) ......... 24
D. Treatment of Claims Against and Interests in CMM ............ 25
1. Class B1 (First Union Secured Claims) .................. 25
2. Class B2 (Other Secured Claims) ........................ 25
3. Class B3 (Priority Claims) ............................. 25
4. Class B4 (Guarantee Claims) ............................ 25
5. Class B5 (CMM General Unsecured Claims) ................ 25
6. Class B6 (Intercompany Claims) ......................... 25
7. Class B7 (CMI's Interests in CMM) ...................... 26
E. Treatment of Claims Against and Interests in Holdings ....... 26
1. Class C1 (Citicorp Secured Claims) ..................... 26
2. Class C2 (Other Secured Claims) ........................ 26
3. Class C3 (Priority Claims) ............................. 26
4. Class C4 (Guarantee Claims) ............................ 26
5. Class C5 (Holdings General Unsecured Claims) ........... 26
<PAGE>
6. Class C6 (Intercompany Claims) ......................... 26
7. Class C7 (Interests in Holdings) ....................... 27
F. Modification of Treatment of Claims ......................... 27
V. DISTRIBUTIONS UNDER THE PLAN ..................................... 27
A. Disbursing Agent ............................................ 27
B. Timing of Distributions ..................................... 27
C. Methods of Distributions .................................... 27
1. Cash Payments .......................................... 27
2. Compliance with Tax Requirements ....................... 28
D. Distribution Record Date .................................... 28
E. Surrender of Cancelled Old Securities and Exchange of Old
Securities for New Securities ............................... 28
1. Tender of Old Securities ............................... 28
a. Old Securities Held in Book-Entry Form ............. 29
b. Old Securities in Physical, Registered, Certificated
Form ............................................... 29
2. Delivery of New Securities in Exchange for Old Securities 29
3. Special Procedures for Lost, Stolen, Mutiliated or Destroyed
Instruments ............................................ 30
4. Failure to Surrender Cancelled Instrument .............. 30
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 ........................................ 31
G. Delivery of Distributions; Undeliverable or Unclaimed
Distributions ............................................... 31
H. Procedures for Treating Disputed Claims Under Plan of
Reorganization .............................................. 32
1. Disputed Claims ........................................ 32
a. Process ............................................ 32
b. Tort Claims ........................................ 32
2. Objections to Claims and Interests ..................... 33
3. Professional Claims .................................... 33
4. No Distributions Pending Allowance ..................... 33
5. Distributions on Account of Disputed Claims and Interests
Once They are Allowed .................................. 33
I. Setoffs ..................................................... 33
VI. INDIVIDUAL HOLDER PROOFS OF INTEREST ............................. 34
VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES ............ 34
A. Assumptions ................................................. 34
B. Cure of Defaults in Connection with Assumption .............. 34
C. Rejections .................................................. 34
D. Bar Date for Rejection Damages .............................. 35
VIII. ACCEPTANCE OR REJECTION OF THE PLAN .............................. 35
A. Voting Classes .............................................. 35
B. Presumed Acceptances of Plan ................................ 35
C. Confirmability of Plan and Cramdown ......................... 35
IX. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN ............... 36
A. Corporate Structure ......................................... 36
B. Corporate Action ............................................ 36
<PAGE>
1. Cancellation of Old Securities and Related Agreements .. 36
2. Articles of Incorporation and Bylaws for Reorganized CMI 36
3. Articles of Incorporation and Bylaws for Reorganized CMM 37
4. Directors and Management of Reorganized CMI ............ 37
5. Directors and Management of Reorganized CMM and
Reorganized Holdings ................................... 37
6. No Further Corporate Action ............................ 38
C. Implementation .............................................. 38
D. Effectuating Documents and Actions .......................... 38
E. Term of Injunctions or Stays ................................ 38
F. No Interest; Disallowance of Penalties and Premiums ......... 38
G. Retiree Benefits ............................................ 39
H. Recapitalization Financing Including Issuance of New
Securities .................................................. 39
I. Sale of the CMBS Sale Portfolio ............................. 39
J. Potential New Equity Investment and Rights Offering ......... 39
K. Second Amended and Restated Stock Option Plan ............... 40
L. Affiliate Reorganization..................................... 41
X. CONFIRMATION AND EFFECTIVE DATE CONDITIONS ....................... 41
A. Conditions to Confirmation .................................. 41
B. Conditions to Effective Date ................................ 42
XI. EFFECTS OF PLAN CONFIRMATION ..................................... 42
A. Discharge of Debtors and Injunction ......................... 42
B. Limitation of Liability ..................................... 43
C. Releases .................................................... 43
D. Indemnification ............................................. 44
E. Vesting of Assets ........................................... 45
F. Preservation of Causes of Action ............................ 46
G. Retention of Bankruptcy Court Jurisdiction .................. 46
H. Failure of Bankruptcy Court to Exercise Jurisdiction ........ 48
I. Committees .................................................. 48
XII. MISCELLANEOUS PROVISIONS ......................................... 48
A. Final Order ................................................. 48
B. Modification of the Plan .................................... 48
C. Revocation of the Plan ...................................... 49
D. Application of Section 1145 of the Bankruptcy Code and Federal
Securities Laws ............................................. 49
E. Application of Section 1146(c) of the Bankruptcy Code ....... 49
F. Successors and Assigns ...................................... 50
G. Saturday, Sunday or Legal Holiday ........................... 50
H. Committee Action ............................................ 50
I. Post-Effective Date Effect of Evidences of Claims or
Interests ................................................... 50
J. Governing Law ............................................... 50
K. No Liability for Solicitation or Participation .............. 50
L. Severability of CMM Provisions .............................. 51
M. No Admissions or Waiver of Objections........................ 51
<PAGE>
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", and collectively with CMI and Holdings, the "Debtors")
hereby propose this Third Amended Joint Plan of Reorganization (defined herein
as this "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. The Official Committee of Equity Security Holders
of CMI (defined herein as the "CMI Equity Committee" joins the Debtors as a
Co-Proponent of this Plan.
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 Reorganization 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 (as used
hereinafter, the word "objection" shall include a motion to estimate for
purposes of allowance), is Filed within the time fixed by the Bankruptcy Court
for such objections; or
<PAGE>
(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
(including, but not limited to, any Claim or Interest listed on the Debtors'
schedules, not scheduled as contingent, unliquidated or disputed, and not
superseded by a timely-filed proof of Claim or Interest) and no objection to the
Claim or Interest is Filed within the time fixed by the Bankruptcy Court for
such objections; or
(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. "ALLOWED CLASS A1 CMO-IV CLAIM" means the Allowed Secured Claim of the
Holder of the Allowed Class A1 Claim with respect to the CMO-IV Bonds.
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)).
<PAGE>
10. "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 this
Plan.
11. "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.
12. "CLASS" means a class of Claims or Interests designated pursuant to the
Plan.
13. "CLASS A1 CASH PAYMENT" means a payment in Cash on the Effective Date
to the Holder of the Allowed Class A1 Claim with respect to the CMO-IV Bonds in
the amount of $4.5 million.
14. "CLASS A9/A10 CASH PAYMENT" means the Cash payment to be made on the
Effective Date by CMI to Holders of Allowed Class A9 and A10 Claims as described
in Exhibit 2 hereto.
15. "CLASS A9/A10 NOTE A" means one of a series of notes, governed by an
indenture, to be issued by CMI to Holders of Allowed Class A9 and Allowed Class
A10 Claims as described in Exhibit 2 hereto.
16. "CLASS A9/A10 NOTE B" means one of a series of notes, governed by an
indenture, to be issued by CMI to Holders of Allowed Class A9 and Allowed Class
A10 Claims as described in Exhibit 2 hereto.
17. "CLASS A9/A10 NOTES" means collectively the Class A9/A10 Note A's and
Class A9/A10 Note B's.
18. "CLEARING SYSTEMS" means DTC or any similar clearing system.
19. "CLERK" means the Clerk of the Bankruptcy Court.
20. "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.
21. "CMI" means CRIIMI MAE Inc., a Maryland corporation.
22. "CMI COMMON STOCK" means the common stock of CMI, par value $.01 per
share.
23. "CMI CREDITORS' COMMITTEE" means the Official Committee of Unsecured
Creditors of CMI appointed by the United States Trustee.
<PAGE>
24. "CMI EQUITY COMMITTEE" means the Official Committee of Equity Security
Holders of CMI appointed by the United States Trustee.
25. "CMI GENERAL UNSECURED CLAIMS" means all Allowed Unsecured Claims
against CMI other than Claims against CMI of Holders of Old Senior Notes,
Unsecured Claims (if any) in Classes A8, A9, A11, A12, A13, A15, A17, A19 and
A23 as provided hereinafter, Administrative Claims against CMI and Priority Tax
Claims against CMI.
26. "CMM" means CRIIMI MAE Management, Inc., a Maryland corporation and
wholly-owned subsidiary of CMI.
27. "CMM GENERAL UNSECURED CLAIMS" means all Allowed Unsecured Claims
against CMM other than Unsecured Claims (if any) in Classes B3, B4 and B6 as
provided hereinafter, Administrative Claims against CMM and Priority Tax Claims
against CMM.
28. "CMO-IV ADDITIONAL COLLATERAL" means the following bonds and owner
trust certificates owned by the Company: CMM 1998-1, Classes K, P, XS and R.
29. "CMO-IV BONDS" means the following bonds owned by the Company: CMM
1998-1, Classes X/IO, F, G, H and J.
30. "CMSLP" means CRIIMI MAE Services Limited Partnership, a Maryland
limited partnership.
31. "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.
32. "COMPANY" means CMI and its consolidated subsidiaries.
33. "CONFIRMATION" means the entry by the Bankruptcy Court of the
Confirmation Order.
34. "CONFIRMATION DATE" means the date on which the Clerk enters the
Confirmation Order on the Docket.
35. "CONFIRMATION HEARING" means the hearing on confirmation of this Plan.
36. "CONFIRMATION ORDER" means the Order of the Bankruptcy Court confirming
this Plan under Section 1129 of the Bankruptcy Code.
37. "CO-PROPONENT" means the CMI Equity Committee as a Co-Proponent of this
Plan with the Debtors.
38. "DEBTOR RELEASEES" shall have the meaning ascribed to such term in
Section XI.C of this Plan.
<PAGE>
39. "DEBTORS" means CMI, Holdings and CMM, collectively and individually as
appropriate from the context, as debtors and debtors in possession.
40. "DEBTORS IN POSSESSION" means the Debtors, when acting in the capacity
of representatives of the Estates in the Reorganization Cases.
41. "DISBURSING AGENT" means, collectively, one or more Persons responsible
for making distributions under this Plan. The Reorganized Debtors or such
Person(s) as the Debtors may employ in their sole discretion will serve as
Disbursing Agent.
42. "DISCLOSURE STATEMENT" means the disclosure statement pursuant to
Section 1125 or Section 1126(b) of the Bankruptcy Code with respect to this Plan
(and all exhibits and schedules annexed thereto or referred to therein), as it
may be amended or supplemented from time to time.
43. "DISPUTED CLAIM" means a Claim, to the extent such Claim is not an
Allowed Claim or disallowed by a Final Order.
44. "DISPUTED INTEREST" means an Interest to the extent such Interest is
not an Allowed Interest.
45. "DISTRIBUTION RECORD DATE" means the date fixed by the Bankruptcy Court
as the record date for determining the Holders of Allowed Claims or Allowed
Interests who are entitled to receive distributions under this Plan, which date
shall not be prior to five Business Days after the Confirmation Date and, if no
such date is fixed, means five Business Days after the Confirmation Date.
46. "DOCKET" means the docket or dockets in the Reorganization Cases
maintained by the Clerk.
47. "DTC" means The Depository Trust Company.
48. "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, (i) all conditions to the Effective Date set forth herein have been
satisfied or waived by the Debtors, and (ii) no stay of the Confirmation Order
is in effect.
49. "ELIGIBLE INSTITUTION" shall have the meaning ascribed to such term in
Section V.E.l.b of the Plan.
50. "EMPLOYEE CLAIMS" means Claims that 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.
51. "ESTATES" means the estates created in the Debtors' Reorganization
Cases under Section 541 of the Bankruptcy Code.
<PAGE>
52. "FILE," "FILED" or "FILING" means file, filed or filing with the
Bankruptcy Court in the Reorganization Cases.
53. "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.
54. "FORMER SERIES C PREFERRED STOCK" means CMI's former Series C
Cumulative Convertible Preferred Stock, with a liquidation preference of $100
per share. 55. "FREDDIE MAC" means the Federal Home Loan Mortgage Corporation.
56. "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.
57. "GACC" means German American Capital Corporation.
58. "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.
59. "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.
60. "HOLDINGS" means CRIIMI MAE Holdings II, L.P., a Delaware limited
partnership.
61. "HOLDINGS GENERAL UNSECURED CLAIMS" means all Allowed Unsecured Claims
against Holdings other than Unsecured Claims (if any) in Classes C3, C4 and C6
as provided hereinafter, Administrative Claims against Holdings and Priority Tax
Claims against Holdings.
62. "IMPAIRED" shall have the meaning ascribed to it in Section 1124 of the
Bankruptcy Code.
63. "INDEMNITEES" shall have the meaning ascribed to such term in Section
XI.D of the Plan.
<PAGE>
64. "INDENTURE TRUSTEE" means State Street Bank, as indenture trustee for
the Old Senior Notes or any successor thereto.
65. "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.
66. "INSURANCE PROCEEDS" means the insurance proceeds payable to or on
behalf of CMI with respect to an Allowed Securities Claim.
67. "INTERCOMPANY CLAIMS" means any and all Claims and causes of action
which any of the Debtors holds against any other Debtor.
68. "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.
69. "LETTER OF TRANSMITTAL" shall have the meaning ascribed to such term in
Section V.E.l.b of the Plan.
70. "LIBOR" means the London Interbank Offered Rate for one-month United
States dollars deposits as set forth on page 3750 of Telerate as of 8:00 a.m.,
New York City time, on the date of determination.
71. "LOCAL BANKRUPTCY RULES" means the local rules of the Bankruptcy Court,
as applicable from time to time in the Reorganization Cases.
72. "MERRILL" means Merrill Lynch Mortgage Capital Inc.
73. "NEW DEBT" means the new secured and unsecured debt to be borrowed by,
or issued pursuant to this Plan to creditors of, the Reorganized Debtors as part
of funding this Plan and the Reorganized Debtors.
74. "NEW EQUITY" means the new equity capital (if applicable) raised by
Reorganized CMI in accordance with Section IX.J of this Plan.
75. "NEW SECURITIES" means the Class A9/A10 Notes, the Series E Preferred
Stock (to be issued in exchange for the Old Series D Preferred Stock, provided,
however, that if the Old Series D Preferred Stock is exchanged for Series E
Preferred Stock prior to the Effective Date, then such Series E Preferred Stock
shall not be deemed New Securities) and any CMI Common Stock issued on the
Effective Date as payment for accrued and unpaid dividends to Holders of any
series of CMI preferred stock (including the Former Series C Preferred Stock and
the former Series D Preferred Stock if the Old Series D Preferred Stock is
exchanged for Series E Preferred Stock prior to the Effective Date).
76. "OLD CMI PREFERRED STOCK" means the Old Series D Preferred Stock.
77. "OLD SECURITIES" means the Old Senior Notes and the Old CMI Preferred
Stock.
<PAGE>
78. "OLD SENIOR NOTE CLAIMS" means Claims arising from the Old Senior Notes
(including all Claims and causes of action arising therefrom or in connection
therewith).
79. "OLD SENIOR NOTES" means CMI's 9 1/8% Senior Notes due 2002 in the
aggregate original principal amount of $100 million.
80. "OLD SERIES D PREFERRED STOCK" means CMI's Series D Cumulative
Convertible Preferred Stock, with a liquidation preference of $100 per share.
81. "ORDER" means an order or judgment of the Bankruptcy Court as entered
on the Docket.
82. "OTHER SECURED CLAIM" means any Allowed Secured Claim in Class A7,
Class B2 or Class C2.
83. "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).
84. "PETITION DATE" means October 5, 1998, the date on which the
Reorganization Cases were Filed.
85. "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.
86. "PLAN INTEREST" means interest at the legal rate, which shall mean the
federal judgment rate pursuant to 28 U.S.C. 1961(a) in effect as of the
Confirmation Date unless the Holder of a Claim objects thereto on or before the
Confirmation Date, in which event the applicable rate for such objector will be
the federal rate as determined by the Bankruptcy Court for such objector if such
objector is determined to be the Holder of an Allowed Claim.
87. "PLAN RATE" means interest at the non-default contract interest rate
provided for in the documents applicable to the Claim of the creditor for whom
the term Plan Rate is applicable. If a creditor has more than one Allowed Claim
with different documents providing for different non-default contract interest
rates for each such Allowed Claim, then the Plan Rate shall be calculated at the
non-default contract interest rate applicable to each separate component of such
creditor's Allowed Claim.
88. "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 Claims accrue within
the period from and including the Petition Date through and including the
Effective Date.
<PAGE>
89. "PRIORITY CLAIM" means an Allowed Claim entitled to priority under any
of Sections 507 (a) (3) through 507 (a) (7) or 507 (a) (9) of the Bankruptcy
Code, but excludes Priority Tax Claims.
90. "PRIORITY TAX CLAIM" means an Allowed Claim entitled to priority under
Section 507 (a) (8) of the Bankruptcy Code.
91. "PRO RATA" means proportionately so that, with respect to any Class or
Classes, the ratio of (a) the amount of consideration distributed on account of
a particular Allowed Claim to (b) the amount of such particular Allowed Claim,
is the same as the ratio of (x) the amount of consideration distributed on
account of all Allowed Claims of the Class or Classes in which the particular
Allowed Claim is included to (y) the aggregate amount of all Allowed Claims of
that Class or Classes. Until a Disputed Claim is disallowed by a Final Order or
otherwise resolved, it will be treated in all Pro Rata calculations at the
lesser of the amount requested by the claimant and such amount as may be capped
by the Bankruptcy Court upon motion requesting such a cap.
92. "RECAPITALIZATION FINANCING" means the total New Debt and New Equity
(if applicable) to be used in connection with funding the Plan and the
Reorganized Debtors.
93. "REORGANIZATION CASES" means the Debtors' cases under chapter 11 of the
Bankruptcy Code.
94. "REORGANIZED CMI" means CMI, as it will be reorganized as of the
Effective Date in accordance with this Plan.
95. "REORGANIZED CMI ARTICLES OF INCORPORATION" means the amended and
restated articles of incorporation of Reorganized CMI that will be effective on
the Effective Date.
96. "REORGANIZED CMI BYLAWS" means the amended and restated bylaws of
Reorganized CMI that will be effective on the Effective Date.
97. "REORGANIZED CMM" means CMM as it will be reorganized as of the
Effective Date in accordance with this Plan.
98. "REORGANIZED CMM ARTICLES OF INCORPORATION" means the CMM articles of
incorporation in existence as of the Effective Date.
99. "REORGANIZED CMM BYLAWS" means the CMM bylaws in existence as of the
Effective Date.
100. "REORGANIZED DEBTORS" means Reorganized CMI, Reorganized CMM and
Reorganized Holdings, collectively and individually, as appropriate from the
context.
101. "REORGANIZED HOLDINGS" means Holdings as it will be reorganized as of
the Effective Date in accordance with this Plan.
<PAGE>
102. "SECOND AMENDED AND RESTATED STOCK OPTION PLAN" means CMI's Second
Amended and Restated Stock Option Plan for Key Employees to be effective on the
Effective Date.
103. "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 based upon the repurchase price thereunder but only to the extent of the
value of the Claim Holder's interest in the property that is the subject of the
repurchase agreement.
104. "SECURITIES CLAIM" means (a) any Claim arising from a claim for
rescission of a purchase or sale of any Series B Preferred Stock, Former Series
C Preferred Stock, Old Series D Preferred Stock or CMI Common Stock, or for
damages arising from the purchase or sale of any such securities, or (b) any
Claim for indemnity, reimbursement or contribution on account of any such Claim.
105. "SERIES B PREFERRED STOCK" means CMI's Series B Cumulative Convertible
Preferred Stock.
106. "SERIES E PREFERRED STOCK" means CMI's Series E Cumulative Convertible
Preferred Stock into which shares of Former Series C Preferred Stock and Old
Series D Preferred Stock have been or will be exchanged and which has the terms,
rights and preferences summarized in Exhibit 3 hereto and as set forth in the
Articles Supplementary relating to the Series E Preferred Stock.
107. "SERIES F DIVIDEND PREFERRED STOCK" means CMI's Series F Redeemable
Cumulative Dividend Preferred Stock.
108. "STOCK OPTIONS" means the stock options to acquire CMI Common Stock
outstanding as of the Effective Date.
109. "TENDERED CERTIFICATES" shall have the meaning ascribed to such term
in Section V.E.l.b of the Plan.
110. "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.
111. "UCC" means the Maryland Uniform Commercial Code, as in effect at any
relevant time.
112. "UNIMPAIRED" means with respect to any Claim or Interest that such
Claim or Interest is not Impaired.
113. "UNSECURED CLAIM" means any Claim that is not a Secured Claim.
<PAGE>
114. "VOTING RECORD DATE" means the date set by the Bankruptcy Court for
determining the Holders of Old Senior Notes, Class A10 Claims, Series B
Preferred Stock, Former Series C Preferred Stock, Old CMI Preferred Stock,
Series F Dividend Preferred Stock and CMI Common Stock entitled to vote to
accept or reject this Plan.
B. Interpretation and Computation of Time.
1. Defined Terms.
Any term used in this Plan that is not defined in this 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 this 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 this 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 this 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 this Plan to paragraphs,
sections, articles and exhibits are references to paragraphs, sections, articles
and exhibits of or to this Plan; (e) the words "herein," "hereof," "hereto,"
"hereunder" and others of similar import refer to this Plan in its entirety
rather than to a particular portion of this 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 this Plan;
and (g) the rules of construction set forth in Section 102 of the Bankruptcy
Code shall apply.
3. Time Periods.
In computing any period of time prescribed or allowed by this 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
this 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
<PAGE>
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 this 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 this
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.
A. 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. or any
other Holder of a Secured Claim
against CMI under, arising
from or related to that certain
Master Repurchase Agreement
between CMI and Citicorp
Securities, Inc. dated as of
August 1, 1997 or any documents
executed in connection
therewith or related thereto.
Class A2 - First Union Secured Claim Class A2 consists of all Allowed
Secured Claims against CMI
of First Union National Bank or
any other Holder of a
Secured Claim against CMI under,
arising from or related to
(i) that certain Master
Assignment Agreement between
First Union National Bank and
CMI dated as of June 30, 1998 or
any documents executed in
connection therewith or related
thereto or (ii) that certain
Guaranty by CMI in favor of
and for the benefit of Signet
Bank/Virginia entered into as
of June 30, 1995 or that certain
Collateral Assignment of
Partnership Interests from CMI
in favor of Signet
Bank/Virginia dated as of
June 30, 1995 or that certain
Stock Pledge Agreement by CMI in
favor of Signet Bank/Virginia
dated as of June 30, 1995 or
that certain Credit Agreement
between CMM and Signet
Bank/Virginia dated as of
June 30, 1995 or any documents
executed in connection with or
related to any of the foregoing.
<PAGE>
Class A3 - GACC Secured Claim Class A3 consists of all Allowed
Secured Claims against CMI
of German American Capital Corp.
or any other Holder of a Secured
Claim against CMI under, arising
from or related to that certain
Master Loan and Security
Agreement between CMI and German
American Capital Corp. dated as
of March 31, 1998 or any
documents executed in connection
therewith or related thereto.
Class A4 - Lehman Secured Claim Class A4 consists of all Allowed
Secured Claims against CMI of
Lehman Ali Inc. or any other
Holder of a Secured Claim
against CMI under, arising from
or related to that certain
Master Assignment Agreement
between CMI and Lehman Ali Inc.
dated as of May 29, 1998 or any
documents executed in connection
therewith or related thereto.
Class A5 - Merrill Secured Claim Class A5 consists of all Allowed
Secured Claims against CMI of
Merrill Lynch Mortgage Capital
Inc. or any other Holder of a
Secured Claim against CMI under,
arising from or related to that
certain Master Assignment
Agreement between CMI and
Merrill Lynch Mortgage Capital
Inc. dated as of September 25,
1997 or any documents executed
in connection therewith or
related thereto.
Class A6 - Morgan Stanley Secured Claim Class A6 consists of any Allowed
Secured Claims against CMI of
Morgan Stanley & Co.
International Ltd. or any other
Holder of a Secured Claim
against CMI under, arising from
or related to that certain
Master Repurchase Agreement
between Morgan Stanley & Co.
International Limited and CMI
dated as of May 8, 1998 or any
documents executed in connection
therewith or related thereto.
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.
<PAGE>
Class A9 - Old Senior Note Claims Class A9 consists of all
Allowed Claims against CMI of
Holders of Old Senior Notes
under, arising from or related
to the Old Senior Notes.
Class A10 - CMI 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, A15, A17,
A19 and A23 and other than
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.
Class A14 - Series B Preferred Stock Class A14 consists of all
Allowed Series B Preferred Stock
Interests in CMI.
Class A15 - Series B Preferred Stock Class A15 consists of all
Securities Claims Allowed Securities Claims on
account of Series B Preferred
Stock against CMI.
Class A16 - Former Series C Preferred Stock Class A16 consists of all
Allowed Former Series C
Preferred Stock Interests in
CMI.
Class A17 - Former Series C Preferred Stock Class A17 consists of all
Securities Claims Allowed Securities Claims on
account of Former Series C
Preferred Stock against CMI.
Class A18 - Old Series D Preferred Stock Class A18 consists of all
Allowed Old Series D Preferred
Stock Interests in CMI.
Class A19 - Old Series D Preferred Stock Class A19 consists of all
Securities Claims Allowed Securities Claims on
Securities Claim account of Old
Series D Preferred Stock against
CMI.
Class A20 - Series F Dividend Preferred Stock Class A20 consists of all
Allowed Series F Dividend
Preferred Stock Interests in
CMI.
<PAGE>
Class A21 - CMI Common Stock Class A21 consists of all
Allowed CMI Common Stock
Interests in CMI.
Class A22 - Stock Options Class A22 consists of all
Allowed Stock Option Interests
in CMI.
Class A23 - CMI Common Stock Securities Class A23 consists of all
Claims Allowed Securities Claims on
account of CMI Common Stock
against CMI.
B. CMM Classes
Class B1 - First Union Secured Claims Class B1 consists of all Allowed
Secured Claims against CMM of
First Union National Bank or any
other Holder of a Secured Claim
against CMM under, arising from
or related to that certain
Credit Agreement between CMM and
Signet Bank/Virginia dated as of
June 30, 1995 or any documents
executed in connection therewith
or related thereto.
Class B2 - Other Secured Claims Class B2 consists of any
Allowed Secured Claims
against CMM other than the
Secured Claims specified in
Class B1.
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 - CMM 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 other than Administrative
Claims and Priority Tax Claims.
Class B6 - Intercompany Claims Class B6 consists of all Allowed
Claims against CMM of CMI or
Holdings.
<PAGE>
Class B7 - CMI's Interests in CMM Class B7 consists of all Allowed
Interests in CMM of CMI.
C. Holdings Classes
Class C1 - Citicorp Secured Claims Class C1 consists of all
remaining Allowed Secured
Claims (if any) 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 - Holdings 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 other than Administrative
Claims and Priority Tax Claims.
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
<PAGE>
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 this
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 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 this 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 this 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
<PAGE>
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 supporting documents for such fees and
expenses, Reorganized CMI disputes the reasonableness of any such fees and
expenses, Reorganized CMI shall negotiate in good faith to resolve such dispute.
To the extent that Reorganized CMI and 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.
<PAGE>
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, A15, A17, A19, A22 and A23 are not Impaired by the Plan.
Classes A1, A2, A3, A4, A5, A6, A7, A9, A10, A11, A13, A14, A16, A18, A20 and
A21 are Impaired Classes under the Plan.
2. Claims Against and Interests 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, C4 and C7 are not Impaired by the Plan. Classes C1, C2, C5 and
C6 are Impaired Classes under the Plan.
C. Treatment of Claims Against and Interests in CMI.
1. Class A1 (Citicorp Secured Claims).
The Holder of the Allowed Class A1 Claim shall receive on the Effective
Date the treatment of its Allowed Secured Claim set forth on Exhibit 4 hereto,
or such other treatment as may be agreed to by CMI and the Holder of the Allowed
Class A1 Claim. As set forth in Exhibit 4, the treatment set forth therein
resolves all Claims of the Holder of the Allowed Class A1 Claim, and the
affiliates thereof referenced in Exhibit 4, against each of the Debtors, the
Reorganized Debtors and CRIIMI MAE Brick Church, Inc.
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 any remaining balance of its Allowed Class A2
Claim with interest on the principal balance of such Allowed Claim calculated at
the Plan Rate.
<PAGE>
3. Class A3 (GACC Secured Claim).
The Holder of the Allowed Class A3 Claim shall receive on the Effective
Date the treatment of its Allowed Secured Claim set forth on Exhibit 1 hereto,
or such other treatment as may be agreed to by CMI and the Holder of the Allowed
Class A3 Claim.
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 any remaining balance of its Allowed Class A4
Claim with interest on the principal balance of such Allowed Claim calculated at
the Plan Rate.
5. Class A5 (Merrill Secured Claim).
The Holder of the Allowed Class A5 Claim shall receive on the Effective
Date the treatment of its Allowed Secured Claim set forth on Exhibit 1 hereto,
or such other treatment as may be agreed to by CMI and the Holder of the Allowed
Class A5 Claim.
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 any remaining balance of its Allowed Class A6
Claim with interest on the principal balance of such Allowed Claim calculated at
the Plan Rate.
7. Class A7 (Other Secured Claims).
The Holder of an Allowed Class A7 Claim (if any) shall receive on the
Effective Date either (i) payment in full in Cash of the Allowed Class A7 Claim
with interest on the principal balance of any such Allowed Claim calculated at
the Plan Rate, (ii) if CMI so elects, the collateral securing the Allowed Class
A7 Claim (if any) in full satisfaction of such Claim, or (iii) such other
treatment as may be agreed to by CMI and the Holder(s), if any, of Allowed Class
A7 Claim(s).
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
the treatment of their Allowed Claims set forth on Exhibit 2 hereto.
<PAGE>
10. Class A10 (CMI General Unsecured Claims).
The Holders of Allowed Class A10 Claims shall receive on the Effective Date
the treatment of their Allowed Claims as set forth on Exhibit 2 hereto. With
respect to the Class A10 convenience class referred to in Exhibit 2 hereto, as
part of the treatment of Allowed Class A10 Claims, there shall be a convenience
class option as follows: any Holder of an Allowed Class A10 Claim whose Allowed
Claim is for $150,000 or less and elects the convenience class treatment on its
ballot, or whose Allowed Claim is for an amount in excess of $150,000 and elects
in writing on its ballot to reduce its claim to $150,000 and accept convenience
class treatment thereof, shall be entitled to receive payment in Cash on the
Effective Date of the allowed amount of such Holder's Allowed Class A10 Claim in
full satisfaction of said Claim, with accrued and unpaid pre-petition and
post-petition interest thereon calculated at the non-default contract rate of
interest in such Holder's documents for those Holders of Allowed Class A10
Claims electing convenience class treatment who have a contract, the invoice
rate (capped at 9-1/8%) for those Holders of Allowed Class A10 Claims electing
convenience class treatment who have an invoice rate, and 6% for all others. For
purposes of calculating the $150,000 amount in the preceding sentence, the
amount of allowed post-petition interest on any such Claim (which interest shall
be paid as part of such Claim) will be excluded from such calculation. The total
amount to be paid by CMI with respect to the foregoing convenience class option
shall be paid from the funds in the Class A9/A10 Cash Payment.
11. Class A11 (Guarantee Claims).
If, and only to the extent that, an Allowed Class A11 Claim is not fully
treated with respect to such Holder's underlying Allowed Claim under the Plan
treatment for Claims against CMM or Holdings, as the case may be, any remaining
Allowed Class A11 Claim (if any) shall be included as part of the CMI General
Unsecured Claims and treated for all purposes as part of Class A10.
12. Class A12 (Freddie Mac Claims).
CMI's obligation under the Freddie Mac Agreement shall be deemed reaffirmed
on the Effective Date, and the Claims of Freddie Mac numbered 335 and 497 on the
July 2, 1999 claims register, each in the amount of $230,448,487.24, shall be
deemed withdrawn and thereby disallowed as of 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 (Series B Preferred Stock).
Each Holder of Series B Preferred Stock as of the Effective Date shall
retain its Series B Preferred Stock; provided that if the Holders of Series B
Preferred Stock as of the Voting Record Date vote as a Class by the requisite
amount to accept the Plan, the Articles Supplementary
relating to the Series B Preferred Stock (which will be part of the
Reorganized CMI Articles of Incorporation) will be deemed amended to permit the
payment of dividends on Series B Preferred Stock, including accrued and unpaid
dividends, in CMI Common Stock or Cash (or a combination thereof), at the
election of Reorganized CMI, with such payment of dividends to be consistent
with Exhibits 1 and 2 hereto.
15. Class A15 (Series B Preferred Stock Securities Claims).
Each Holder of an Allowed Class A15 Claim (if any) shall, if, as and when
any such Claim is Allowed by Final Order, receive in full satisfaction of any
such Allowed Class A15 Claim its share of any Insurance Proceeds applicable
thereto plus, if such Allowed Class A15 Claim (if any) is not paid in full from
such Insurance Proceeds, CMI Common Stock in an amount equal in value, as of the
date of issuance thereof, to the balance (if any) of such Allowed Class A15
Claim, provided that any such Claim not timely filed (and in any event not Filed
before the Confirmation Date) shall be released and discharged under this Plan
and the Confirmation Order.
16. Class A16 (Former Series C Preferred Stock).
Former Series C Preferred Stock has been exchanged for Series E Preferred
Stock. Each Holder of Series E Preferred Stock as of the Distribution Record
Date shall retain its Series E Preferred Stock and such Series E Preferred Stock
shall have the terms, rights and preferences summarized in Exhibit 3 hereto and
as set forth in the Articles Supplementary relating to the Series E Preferred
Stock (to be part of the Reorganized CMI Articles of Incorporation). All accrued
and past due dividends on Former Series C Preferred Stock shall be paid on the
Effective Date in CMI Common Stock or Cash, at the election of Reorganized CMI,
with such payment of dividends to be consistent with Exhibits 1 and 2 hereto.
17. Class A17 (Former Series C Preferred Stock Securities Claims).
Each Holder of an Allowed Class A17 Claim (if any) shall, if, as and when
any such Claim is Allowed by Final Order, receive in full satisfaction of any
such Allowed Class A17 Claim its share of any Insurance Proceeds applicable
thereto plus, if such Allowed Class A17 Claim (if any) is not paid in full from
such Insurance Proceeds, CMI Common Stock in an amount equal in value, as of the
date of issuance thereof, to the balance (if any) of such Allowed Class A17
Claim, provided that any such Claim not timely filed (and in any event not filed
before the Confirmation Date) shall be released and discharged under this Plan
and the Confirmation Order.
18. Class A18 (Old Series D Preferred Stock).
Each Holder of Old Series D Preferred Stock as of the Distribution Record
Date, if not previously exchanged, shall receive on the Effective Date in
exchange for its Old Series D Preferred Stock an identical number of shares of
Series E Preferred Stock issued effective as of the Effective Date, and such
Series E Preferred Stock shall have the terms, rights and preferences summarized
in Exhibit 3 hereto and as set forth in the Articles Supplementary relating to
the
<PAGE>
Series E Preferred Stock (to be part of the Reorganized CMI Articles of
Incorporation). All shares of Old Series D Preferred Stock, if not previously
exchanged and cancelled, shall be deemed cancelled as of the Effective Date. All
accrued and past due dividends on Old Series D Preferred Stock shall be paid on
the Effective Date in CMI Common Stock or Cash, at the election of Reorganized
CMI, with such payment of dividends to be consistent with Exhibits 1 and 2
hereto.
19. Class A19 (Old Series D Preferred Stock Securities Claim).
Each Holder of an Allowed Class A19 Claim (if any) shall, if, as and when
any such Claim is Allowed by Final Order, receive in full satisfaction of any
such Allowed Class A19 Claim its share of any Insurance Proceeds applicable
thereto plus, if such Allowed Class A19 Claim (if any) is not paid in full from
such Insurance Proceeds, CMI Common Stock in an amount equal in value, as of the
date of issuance thereof, to the balance (if any) of such Allowed Class A19
Claim, provided that any such Claim not timely filed (and in any event not filed
before the Confirmation Date) shall be released and discharged under this Plan
and the Confirmation Order.
20. Class A20 (Series F Dividend Preferred Stock).
Each Holder of Series F Dividend Preferred Stock as of the Effective Date
shall retain its Series F Dividend Preferred Stock; provided that if the Holders
of Series F Dividend Preferred Stock as of the Voting Record Date vote as a
Class by the requisite amount to accept the Plan, the Articles Supplementary
relating to the Series F Dividend Preferred Stock will be deemed amended to
permit the payment of dividends on Series F Dividend Preferred Stock, including
any accrued and unpaid dividends, in CMI Common Stock or Cash (or a combination
thereof), at the election of Reorganized CMI, with such payment of dividends to
be consistent with Exhibits 1 and 2 hereto.
21. Class A21 (CMI Common Stock).
Each Holder of CMI Common Stock as of the Effective Date shall retain its
CMI Common Stock.
22. Class A22 (Stock Options).
Each Holder of a Stock Option as of the Effective Date shall retain its
Stock Option.
23. Class A23 (CMI Common Stock Securities Claims).
All Holders of Allowed Class A23 Claims (if any) as of the Effective Date
shall receive in full satisfaction of any such Allowed Class A23 Claims their
share of any Insurance Proceeds applicable thereto plus, if such Allowed Class
A23 Claims (if any) are not paid in full from such Insurance Proceeds, CMI
Common Stock in an amount equal in value, as of the date of issuance thereof, to
the balance (if any) of such Allowed Class A23 Claims.
<PAGE>
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 any remaining balance of its Allowed Class B1
Claim with interest on the principal balance of such Allowed Claim calculated at
the Plan Rate.
2. Class B2 (Other Secured Claims)
The Holder of an Allowed Class B2 Claim (if any) shall receive on the
Effective Date either (i) payment in full in Cash of the Allowed Class B2 Claim
with interest on the principal balance of any such Allowed Claim calculated at
the Plan Rate, (ii) if CMM so elects, the collateral securing the Allowed Class
B2 Claim (if any) in full satisfaction of such Claim, or (iii) such other
treatment as may be agreed to by CMM and the Holder(s), if any, of Allowed Class
B2 Claim(s).
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 only to the extent, not
fully treated with respect to such Holder's underlying Allowed Claim under the
Plan treatment for Claims against CMI or Holdings, as the case may be.
5. Class B5 (CMM 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, with accrued and unpaid
pre-petition and post-petition interest thereon calculated at the non-default
contract rate of interest in such Holder's documents for those Holders of
Allowed Class B5 Claims who have a contract, the invoice rate (capped at 9-1/8%)
for those Holders of Allowed Class B5 Claims who have an invoice rate, and 6%
for all other Holders of Allowed Class B5 Claims.
6. Class B6 (Intercompany Claims).
No payment shall be made under the Plan to Holders of Class B6 Claims on
account of such Claims.
<PAGE>
7. Class B7 (CMI's Interests in CMM).
The Holder of the Class B7 Interest shall retain its Interest under this
Plan.
E. Treatment of Claims Against and Interests in Holdings.
1. Class C1 (Citicorp Secured Claims).
The Holder of any remaining Allowed Class C1 Claim (if any) shall be
included in and satisfied as part of the treatment of the Holder of the Allowed
Class A1 Claim as set forth on Exhibit 4 hereto.
2. Class C2 (Other Secured Claims).
The Holder of an Allowed Class C2 Claim (if any) shall receive on the
Effective Date either (i) payment in full in Cash of the Allowed Class C2 Claim
with interest on the principal balance of any such Allowed Claim calculated at
the Plan Rate, (ii) if Holdings so elects, the collateral securing the Allowed
Class C2 Claim (if any) in full satisfaction of such Claim, or (iii) such other
treatment as may be agreed to by Holdings and the Holder(s), if any, of Allowed
Class C2 Claim(s).
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 Cash in full including
Plan Interest thereon if, and only to the extent, not fully treated with respect
to such Holder's underlying Allowed Claim under the Plan treatment for Claims
against CMI or CMM, as the case may be.
5. Class C5 (Holdings General Unsecured Claims).
The Holders of Allowed Class C5 Claims (if any) shall, if, as and when any
such Claim is allowed by Final Order, receive payment in full in Cash of any
such Allowed Class C5 Claim with any accrued and unpaid pre-petition and
post-petition interest thereon calculated at the non-default contract rate of
interest in such Holder's documents for any Holders of Allowed Class C5 Claims
who have a contract, the invoice rate (capped at 9-1/8%) for any such Holders
who have an invoice rate, and 6% for any other Holders of Allowed C5 Claims.
6. Class C6 (Intercompany Claims).
No payment shall be made under this Plan to Holders of Class C6 Claims on
account of such Claims.
<PAGE>
7. Class C7 (Interests in Holdings).
The Holders of the Class C7 Interests shall retain their Interests under
this Plan.
F. Modification of Treatment of Claims.
The Debtors and the CMI Equity Committee 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 this Plan. The
Disbursing Agent shall make all distributions of Cash required to be distributed
under the applicable provisions of this 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 this 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 this 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.
Cash payments made pursuant to this 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
<PAGE>
jurisdiction. Cash payments made pursuant to this 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 this 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 this 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 this Plan
will, pending the implementation of such arrangements, be treated as an
undeliverable distribution pursuant to Section V.G of this 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 Old 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 to exchange such Old 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>
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) 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 notes
or 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 registered in the name of the Person signing the Letter of
Transmittal or 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
or would subject the Disbursing Agent to liability.
2. Delivery of New Securities in Exchange for Old Securities.
On the Effective Date, Reorganized CMI or the Disbursing Agent shall issue,
and cause to be authenticated, the New Securities and shall apply to DTC to make
the New Securities
<PAGE>
eligible for deposit at DTC. With respect to Holders of Old Securities who
hold such Old 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 Old Securities to the Disbursing Agent for cancellation.
The Disbursing Agent will request that DTC effect a mandatory exchange of
the applicable Old Securities for the applicable New Securities by crediting the
accounts of its participants with the applicable New Securities in exchange for
the Old Securities. On the effective date of such exchange, each DTC participant
will effect a similar exchange for accounts of the beneficial owners holding Old
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 Old Securities holding such Old Securities outside a Clearing
System will be required to surrender their Old 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 Old Securities in accordance with the instructions
contained in the Letters of Transmittal.
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 or the applicable Reorganized Debtor to hold
the Disbursing Agent and such Reorganized Debtor 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 this 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 this 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>
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 or in custody, and release and return all
escrows created or existing in respect to any such Claim, 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
<PAGE>
unclaimed or undeliverable distributions (including Cash and New
Securities) shall be deemed 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. 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 by the
Bankruptcy Court, which extension may be granted on an ex parte basis without
notice or
<PAGE>
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 in an amount or of a value of $75,000 or less, other
than Claims or Interests of Insiders (as defined in the Bankruptcy Code),
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. Professional 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. If an
interest-bearing reserve account is established for a Disputed Claim, interest
accruing on such Claim after the establishment of such reserve account (if it is
ultimately Allowed by Final Order or settlement between such Holder and the
applicable Reorganized Debtor) shall be limited to interest actually earned on
the reserve account for such Claim.
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, 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 this 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 this 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
<PAGE>
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 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 A14, A16, A18, A20, 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 Reorganized 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 Article VII,
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
<PAGE>
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. 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, A14, A16, A18, A20, A21, B1, B2, B5, B6, C1, C2, C5
and C6 are Impaired and shall be entitled to vote to accept or reject this Plan.
B. Presumed Acceptances of Plan.
The Holders of Allowed Claims and Interests in Classes A8, A12, A15, A17,
A19, A22, A23, B3, B4, B7, C3, C4 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 this Plan, the Debtors and the CMI Equity Committee will
request that the Bankruptcy Court confirm this Plan under the "cramdown"
provisions of Section 1129(b) of the Bankruptcy Code.
<PAGE>
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 this Plan, the Old
Securities and all instruments, indentures and agreements evidencing or
governing such Old Securities shall be deemed terminated, canceled, extinguished
and of no further force or effect without any further action on the part of the
Bankruptcy Court, or any Person or any government entity or agency, 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. Holders of cancelled Old Securities will have no
rights arising from or relating to such Old Securities or the cancellation
thereof, except the rights provided pursuant to this Plan.
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 contain
amendments providing for, among other matters, an increase in authorized shares
from 120 million to 375 million, (consisting of 300 million shares of common
stock and 75 million shares of preferred stock); authority for the Board of
Directors to increase authorized shares without action by stockholders; new
excess share provisions relating to the transfer, acquisition and redemption of
capital stock addressing ownership limitations for CMI and the treatment of
excess stock intended to ensure compliance with the Internal Revenue Code of
1986 (such excess share provisions are also intended to serve as an antitakeover
device in connection with any hostile acquisition, even though Reorganized CMI's
REIT status would not be threatened by such acquisition); deletion of certain
antitakeover provisions (however CMI will remain subject to the Maryland
business combination statute); a change in the vote required for (a) removal of
directors, (b) amendments to Article XI (excess share provisions), and (c)
amendments to Article XIII (conflict with terms of any class or series of
preferred stock) from a majority to 66 2/3; changes in how vacancies on the
Board of Directors and newly created directorships are filled; and prohibition
of the issuance of nonvoting equity securities to the extent required by Section
1123(a)(6) of the Bankruptcy Code. The Reorganized CMI Bylaws contain amendments
providing for, among other matters, advance notice of matters to be presented at
annual meetings of stockholders and advance notice of nominees for director. 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
<PAGE>
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 be amended
to 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. If the foregoing amendment is required, then the Reorganized
CMM Articles of Incorporation shall be filed with the Maryland Department of
Assessments and Taxation on the Effective Date.
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 by CMI 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 by CMM 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
<PAGE>
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.
6. No Further Corporate Action.
Each of the matters provided for under this Plan involving the corporate
structure of any Debtor or Reorganized Debtor or corporate action to be taken by
or required of any Debtor or Reorganized Debtor (including, without limitation,
approval of the issuance of the New Securities) shall, as of the Effective Date,
be deemed to have occurred and be effective as provided herein, and shall be
authorized and approved in all respects without any requirement of further
action by stockholders or directors of any of the Debtors or Reorganized
Debtors.
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 this Plan 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 further evidence the terms and conditions of this
Plan and the other agreements referred to herein or contemplated hereby.
D. Effectuating Documents and Actions.
The Debtors, Reorganized CMI, Reorganized CMM and Reorganized Holdings, as
the case may be, and each of their respective appropriate officers shall be
authorized to execute and deliver such contracts, instruments, releases, and
other agreements or documents and take such other actions as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of 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; Disallowance of Penalties and Premiums.
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. Any and all Claims for or
<PAGE>
in the nature of penalties or premiums allegedly owing shall be disallowed
including, but not limited to, prepayment penalties, penalty interest, makewhole
premiums or prepayment premiums.
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 this Plan. On the Effective Date,
Reorganized CMI will issue the New Securities in accordance with this Plan. The
issuance of the New Securities and all securities issuable upon conversion of
the New Securities is hereby authorized pursuant to Section 1145 of the
Bankruptcy Code, without further action under applicable law. 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 the Effective Date, all
securities, instruments, corporate documents, and agreements entered into
pursuant to or contemplated by the Plan, 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 this Plan and any Orders with respect thereto entered by the
Bankruptcy Court. The net proceeds thereof shall be used to pay Allowed Secured
Claims in accordance with any Orders entered by the Bankruptcy Court with
respect thereto and otherwise used as part of the funding of this Plan.
J. Potential New Equity Investment and Rights Offering.
Although not required to fund this Plan, the Debtors, in consultation with
the CMI Equity Committee, may seek new equity capital from one or more investors
to partially fund the Reorganized Debtors and this Plan as Recapitalization
Financing. In such event, this Plan will be amended to appropriately reflect
such new equity capital transaction, in a manner consistent with Exhibits 1 and
2 hereto. If new equity capital is sought, it is likely to take the form of a
private issuance of preferred stock with such relative rights and preferences as
may be agreed to consistent with the terms of this Plan.
<PAGE>
In the event new equity capital is sought from an investor, it is also
anticipated that an offering of rights to purchase common stock or a new series
of preferred stock, with rights and preferences similar to the preferred stock
likely to be issued to the new equity capital investor but with limited voting
rights, would be made to Holders of CMI Common Stock. Such rights offering would
be developed in consultation with the CMI Equity Committee. Such rights offering
would commence on the Effective Date and would be for a percentage of the
aggregate face value of the securities issued to the new equity capital
investor. All or a portion of the proceeds of the rights offering may be used to
redeem at face value the securities issued to the new equity investor.
Even if CMI does not seek new equity from an investor, an offering of
rights to purchase CMI Common Stock may be made to Holders of CMI Common Stock
in connection with this Plan. Such rights offering would be developed in
consultation with the CMI Equity Committee.
In the event new equity capital is sought from an investor and a rights
offering is made to Holders of CMI Common Stock or a rights offering is made to
Holders of CMI Common Stock independent of any new equity investment by an
investor, the CMI Common Stock will be exchanged for new CMI Common Stock (on a
one share per one share basis) and rights (one right per share) structured to
ensure that the value of the CMI Common Stock exchanged exceeds the value of the
fresh capital raised in the rights offering, thereby making the exchange
principally in exchange for an interest and only partly for cash and rendering
applicable the limited transactional exemption from securities law registration
afforded by Section 1145 of the Bankruptcy Code. If a rights offering is made
and an exchange of CMI Common Stock, consistent with the foregoing, is effected,
then CMI's existing Series B Preferred Stock, Old Series D Preferred Stock,
Series E Preferred Stock and Stock Options would be exchanged for new Series B
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Stock
Options, as applicable.
K. Second Amended and Restated Stock Option Plan.
On or prior to the Effective Date, the Second Amended and Restated Stock
Option Plan will be adopted by CMI to be effective on the Effective Date and, by
voting to accept this Plan, all Holders of Class A21 Interests shall be deemed
to have ratified and approved the Second Amended and Restated Stock Option Plan.
Additionally, upon entry of a Confirmation Order, the Bankruptcy Court shall,
consistent with Maryland and federal law, be deemed to have approved the Second
Amended and Restated Stock Option Plan (including the increase in the number of
shares of CMI Common Stock with respect to which options may be granted and the
extension of the time in which options may be granted) on behalf of CMI's
stockholders and in satisfaction of Section 422 of the Internal Revenue Code.
Following the Effective Date, the Board of Directors of Reorganized CMI may
further amend or modify the Second Amended and Restated Stock Option Plan in
accordance with the terms thereof and any such further amendment or modification
shall not require amendment of this Plan. The Second Amended and Restated Stock
Option Plan amends CMI's Amended and Restated Stock Option Plan for Key
Employees to, among other matters, provide for an increase in the number of
shares of CMI Common Stock with respect to which options may be granted from
2,092,903 (as adjusted from 2 million shares as a result of the junior preferred
stock dividend paid to common stockholders in November 1999 and consistent with
a Bankruptcy Court Order which limits the full adjustment
<PAGE>
to 2,198,831 shares, contemplated by the terms and provisions of the Second
Amended and Restated Stock Option Plan, until CMI emerges from Chapter 11) to
4,500,000; to extend the time in which options may be granted under the Plan
from June 30, 2000 until June 30, 2002, and to effect changes consistent with
current securities and tax laws. After the Effective Date it is expected that
common stockholder approval of the material terms of the Second Amended Employee
Stock Option Plan will be sought for purposes of becoming exempt from the
deduction limits set forth in Section 162(m) of the Internal Revenue Code.
CMI's Non-Employee Director Stock Option Plan in place prior to the
Effective Date shall remain in place after the Effective Date and Reorganized
CMI shall continue to honor such option plan.
L. Affiliate Reorganization.
In order to secure certain financing contemplated under this Plan with the
commercial mortgage backed securities representing the equity interests in CBO-1
and CBO-2 (the "Equity Interests"), CMI anticipates that, as a part of this
Plan, either (i) a reorganization of certain CMI affiliated entities will be
effected resulting in REIT subsidiaries holding the Equity Interests or owning
the stock in the qualified REIT subsidiaries holding the Equity Interests, or
(ii) the qualified REIT subsidiaries holding the Equity Interests or the trusts
holding the underlying assets will elect REIT status (and other actions will be
taken as necessary to effect such election); with the intent to secure such
financing with a pledge of stock in the REITs, in lieu of a direct pledge of the
Equity Interests. In addition, certain other actions may be taken as necessary
to implement the foregoing. All of the actions taken in accordance with this
Section shall be consistent with the provisions of Exhibit 2 hereto governing
the treatment of Class A9 and Class A10.
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 CMI Equity Committee. 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 this Plan, including, but not limited to, those actions
contemplated by the provisions of this Plan set forth in Section XII hereof, and
shall provide that all New Securities to be issued to Holders of Claims and
Interests pursuant to this Plan and all securities issuable upon the conversion
of the New Securities are exempt from registration under federal and state
securities laws (other than the Trust Indenture Act) pursuant to Section 1145 of
the Bankruptcy Code and that the solicitation of Holders of CMI Common Stock,
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.
<PAGE>
B. Conditions to Effective Date.
1. The Effective Date will not occur and this Plan will not be consummated
unless and until each of the following conditions has been satisfied or waived
by the Debtors and the CMI Equity Committee:
a. The Confirmation Order in form and substance satisfactory to the Debtors
and the CMI Equity Committee and entered by the Bankruptcy Court shall not have
been modified in any respect.
b. The Recapitalization Financing shall be funded in accordance with the
terms of this Plan and the sale of the CMBS Sale Portfolio shall have been
completed.
c. All other actions and documents necessary to implement the transactions
contemplated by this Plan on or before the Effective Date shall have been
effected or executed.
2. The Effective Date will not occur and this Plan will not be consummated
unless all documents necessary to implement the transactions contemplated by
this Plan shall be in form and substance acceptable to each of the parties
required to execute same and all of such documents shall have been executed by
and delivered to the appropriate parties. This condition may be waived by
agreement among the Debtors, the CMI Creditors' Committee, the CMI Equity
Committee, Merrill and GACC.
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 Claim, debt or
Interest is Filed or deemed Filed pursuant to Section 501 of the Bankruptcy
Code, (b) a Claim or Interest based on such Claim, 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 Claim, 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 or the Confirmation Order, 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
<PAGE>
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
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, 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, 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") and (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") 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
<PAGE>
occurrence taking place on or after the Petition Date and up to and
including the Effective Date in any way relating to the Reorganization Cases,
the Plan or the Disclosure Statement.
On the Effective Date, (i) each holder of a Claim or Interest who has voted
in favor of the Plan shall be deemed to have unconditionally released the Debtor
Releasees and the Committee 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 after the Petition Date and up to
and including the Effective Date in any way relating to 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; and (ii) each holder of a
Claim or Interest shall be deemed to have unconditionally released the Debtor
Releasees and the Committee 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 after the Petition Date and up to
and including the Effective Date (the "Released Rights"), for which Released
Rights the holder is entitled to a claim or interest that receives or retains
value as provided in the Plan.
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. In addition,
Reorganized CMI shall fully indemnify the CMI Equity Committee and its
professionals against any claims, liabilities, actions, suits, damages, fines,
judgments or expenses (including reasonable attorneys' fees and expenses) as a
result of or arising from the CMI Equity Committee being a co-proponent of the
Plan and Disclosure Statement provided, however, that the foregoing
indemnification shall not apply to any liabilities arising from gross negligence
or willful misconduct of any such indemnitee. For purposes of the following
sentences in this Section, reference to the term "Indemnitee" shall include the
CMI
<PAGE>
Equity Committee and its professionals. 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 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. Anything herein to the
contrary notwithstanding, no Securities Claims shall be treated as part of
Classes A9 or A10 under the Plan.
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.
<PAGE>
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 this Plan;
2. Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or this
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 this 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 this Plan and all contracts, instruments, releases,
indentures and other agreements or documents created in connection with or
pursuant to this 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 this Plan or
the Confirmation Order, including the release and injunction provisions set
forth in and contemplated by this Plan and the Confirmation Order, or any
entity's rights arising under or obligations incurred in connection with this
Plan or the Confirmation Order;
<PAGE>
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 this 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;
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 this 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 this 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 this 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 this 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 this Plan, the Disclosure Statement, the
Confirmation Order or any contract, instrument, release, indenture or
<PAGE>
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.
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); 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 and the CMI Equity Committee reserve the right to modify this
Plan 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
this Plan, the Debtors and the CMI Equity Committee seek to modify this Plan,
the Debtors and the CMI Equity Committee can use such previously solicited
acceptances only to the extent permitted by applicable law.
The Debtors and the CMI Equity Committee reserve the right after the
Confirmation Date and before the Effective Date to modify the terms of this Plan
or waive any conditions to the effectiveness thereof if and to the extent the
Debtors and the CMI Equity Committee determine that such modifications or
waivers are necessary or desirable to consummate this Plan. The
<PAGE>
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.
The CMI Equity Committee will join in modifications proposed by the Debtors
in accordance with the foregoing in the exercise of such Committee's reasonable
discretion.
Anything in this Section XII.B. to the contrary notwithstanding, any
modifications of or amendments to, or waivers of any conditions to the
effectiveness of, this Plan prior to the Effective Date that materially affect
the treatment or recovery of the Holders of Class A9 or A10 Allowed Claims
require the consent of the CMI Creditors' Committee; provided, however, that it
is hereby agreed that any change in the amount of payments, timing of payments,
term of the New Debt as defined in Exhibit 2 hereto, Collateral as defined in
Exhibit 2 hereto, liens, rights or default remedies available to the Holders of
Class A9/A10 Notes or of any other specific provisions of Exhibit 2 hereto shall
be deemed material for purposes of this paragraph.
C. Revocation of the Plan.
The Debtors reserve the right to revoke or withdraw this Plan prior to the
Confirmation Date. If the Debtors revoke or withdraw this Plan, or if
Confirmation does not occur, then this 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 New Securities to be issued to Holders of Claims and Interests pursuant
to this Plan, and all securities issuable upon the conversion of any of the New
Securities shall be exempt from registration under federal and state securities
laws pursuant to Section 1145 of the Bankruptcy Code. The solicitation of
Holders of CMI Common Stock, Series B Preferred Stock and 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 this 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 this 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.
<PAGE>
F. Successors and Assigns.
The rights, benefits and obligations of any Person named or referred to in
this 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 this 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. Committee Action.
With respect to the action of any of the Committees under this Plan, any
such action shall be duly authorized by majority vote of committee members at a
meeting, in person or by telephone, at which a quorum of such committee is
present or by majority consent of the members of such committee then serving.
I. 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 this
Plan), shall, effective upon the Effective Date, represent only the right to
participate in the distributions contemplated by this Plan.
J. 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, this Plan, or (iii)
applicable non-bankruptcy law, the rights and obligations arising under this
Plan and any agreements, contracts, documents, and instruments executed in
connection with or pursuant to this 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.
K. No Liability for Solicitation or Participation.
As specified in Section 1125 (e) of the Bankruptcy Code, Persons that
solicit acceptances or rejections of this Plan and/or that participate in the
offer, issuance, sale, or purchase of securities offered or sold under or in
connection with this 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
<PAGE>
solicitation of acceptances or rejections of this Plan or the offer,
issuance, sale, or purchase of securities.
L. Severability of CMM Provisions.
If so ordered by the Bankruptcy Court at the Confirmation Hearing, the Plan
provisions herein for CMM may be confirmed independently of confirmation of the
Plan provisions for CMI and Holdings.
M. No Admissions or Waiver of Objections.
Notwithstanding anything herein to the contrary, if the Effective Date does
not occur, nothing contained in this Plan shall be deemed as an admission by the
Debtors, the CMI Equity Committee 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. Neither the Debtors nor the CMI Equity
Committee are bound by any statements herein or in the Disclosure Statement as
judicial admissions.
DATED: July 21, 2000
(as amended November 22, 2000)
CRIIMI MAE Inc.
a Maryland corporation
By: /s/ Cynthia O. Azzara
Name: Cynthia O. Azzara
Title: Senior Vice President
CRIIMI MAE Management, Inc.
a Maryland corporation
By: /s/ Cynthia O. Azzara
Name: Cynthia O. Azzara
Title: Senior Vice President
CRIIMI MAE Holdings II, L.P.
a Delaware Limited Partnership
By: CRIIMI MAE Inc.
its General Partner
By: /s/ Cynthia O. Azzara
Name: Cynthia O. Azzara
Title: Senior Vice President
<PAGE>
VENABLE, BAETJER AND HOWARD, LLP AKIN, GUMP, STRAUSS HAUER
& FELD L.L.P.
By: /s/ Richard L. Wasserman By: /s/ Stanley J. Samorajczyk
Richard L. Wasserman Stanley J. Samorajczyk
Gregory A. Cross Michael S. Stamer
1800 Mercantile Bank and 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
CO-PROPONENT:
Official Committee of Equity Security Holders
of CRIIMI MAE Inc.
By: /s/ Michael F. Wurst
Name: Michael F. Wurst
Title: Co-Chairman
COVINGTON & BURLING
By: /s/ Dennis B. Auerbach
Michael St. Patrick Baxter
Dennis B. Auerbach
1201 Pennsylvania Ave., NW
Washington, D.C. 20044
(202) 662-6000
Attorneys for the Official Committee
of Equity Security Holders of CRIIMI MAE Inc.
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EXHIBIT 1
The Amended and Restated Terms of the Chapter 11 Plan Treatment of Merrill
Lynch Mortgage Capital Inc. and German American Capital Corporation is hereby
incorporated by reference, in its entirety, to Exhibit 1 to Exhibit 2 to Exhibit
99.6 of the Current Report filed on Form 8-K with the Securities and Exchange
Commission on September 22, 2000.
<PAGE>
EXHIBIT 2
The Amended Terms of Chapter 11 Plan Treatment of Class A9 and Class A10
Claims by the Debtors' Third Amended Joint Plan of Reorganization is hereby
incorporated, in its entirety, by reference to Exhibit 2 to Exhibit 2 to Exhibit
99.6 of the Current Report filed on Form 8-K with the Securities and Exchange
Commissions on September 22, 2000.
<PAGE>
EXHIBIT 3
The Series E Convertible Preferred Stock Term Sheet is hereby incorporated,
in its entirety, by reference to Exhibit 3 to Exhibit 2 to Exhibit 99.6 of the
Current Report filed on Form 8-K with the Securities and Exchange Commission on
September 22, 2000.
<PAGE>
EXHIBIT 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE 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)
)
ORDER CONFIRMING DEBTORS'
THIRD AMENDED JOINT PLAN OF REORGANIZATION
CRIIMI MAE Inc. ("CMI"), CRIIMI MAE Management, Inc. ("CMM") and CRIIMI MAE
Holdings II, L.P. ("Holdings") (collectively the "Debtors"), together with the
Official Committee of Equity Security Holders of CMI (the "CMI Equity
Committee"), as co-proponents, having filed the Debtors' Third Amended Joint
Plan of Reorganization, dated July 21, 2000, including all exhibits thereto and
the modifications thereof approved by this Court and referred to in paragraph
"A" hereinbelow (the "Plan")1, this Court having entered an Order (i) Approving
Disclosure Statement; (ii) Fixing Time within which Creditors and Equity
Interest Holders May Vote to Accept or Reject Plan of Reorganization; (iii)
Fixing Date, Time and Place for Hearing on Confirmation of Plan; (iv) Approving
Form of Ballots and Voting Procedures; and (v)
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Approving Manner of Notice on August 24, 2000 (the "Order Approving
Disclosure Statement"); this Court having established in the Order Approving
Disclosure Statement October 20, 2000 at 5:00 p.m. Eastern Time as the deadline
for submitting ballots accepting or rejecting the Plan;2 the Debtors having
filed the Affidavits of Bankruptcy Services, LLC ("BSI") of service of notice of
the Confirmation Hearing and the Solicitation Packages to holders of Claims and
Interests entitled to vote to accept or reject the Plan, and to other parties in
interest (the "BSI Notice Affidavit") in accordance with the Order Approving
Disclosure Statement; the Debtors having filed the Affidavits of Publication
with respect to publication of the notice of the Confirmation Hearing in The
Wall Street Journal, The Washington Post and The Baltimore Sun (collectively,
the "Publication Affidavits") in accordance with the Order Approving Disclosure
Statement; this Court having established in the Order Approving Disclosure
Statement November 15, 2000 at 10:00 a.m. Eastern Time as the date and time of
the hearing to consider confirmation of the Plan pursuant to 1129 of the
Bankruptcy Code (the "Confirmation Hearing"); the Debtors having filed the
Affidavit of BSI Certifying the Ballots Accepting or Rejecting Third Amended
Joint Plan of Reorganization of CRIIMI MAE Inc., et. al., on November 3, 2000
(the "BSI Voting Affidavit"); a hearing having been held on November 15, 2000
pursuant to 1128(a) of the Bankruptcy Code after due and proper notice; upon
consideration of the objections to confirmation filed by Marilyn Ruh, Merrill
Lynch Mortgage Capital Inc. ("Merrill") and German American Capital Corporation
("GACC"); the Court having heard testimony, received exhibits entered into
<PAGE>
evidence, reviewed the pleadings and other proceedings of record herein and
having heard the arguments of counsel; and upon the record of the Confirmation
Hearing and all the proceedings held before this Court herein; and after due
deliberation and sufficient cause appearing therefor, this Court hereby makes
the following findings of fact and conclusions of law,3 and hereby grants this
Order Confirming Debtors' Third Amended Joint Plan of Reorganization (the
"Confirmation Order"):
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A. The modification of the Debtors' Third Amended Joint Plan of
Reorganization as proposed by the Debtors and the CMI Equity Committee, as
co-proponents, at the Confirmation Hearing, said modification having been filed
with this Court on November 15, 2000, and the modification reflected in
paragraph 17 hereinbelow, do not constitute a material modification of the Plan,
do not adversely change the treatment of the Claim of any creditor or the
Interest of any interest holder, do not cause the Plan to fail to meet the
requirements of 1122 or 1123 of the Bankruptcy Code, satisfy the requirements
of Rule 3019 of the Federal Rules of Bankruptcy Procedure and do not require
resolicitation of acceptances or rejections or require any holders of Claims or
Interests to be afforded an opportunity to change previously cast acceptances or
rejections; no further notice or hearing is necessary with respect to such
modifications; and as used herein, the term "Plan" shall refer to the Plan
attached hereto
<PAGE>
as Exhibit 1, as modified by the modification attached hereto as Exhibit 2
and the modified provision in paragraph 17 hereinbelow.
B. On October 5, 1998, the Debtors commenced these cases in good faith by
filing voluntary petitions for relief under Chapter 11 of the Bankruptcy Code.
The Debtors were and are qualified to be debtors under 109 of the Bankruptcy
Code. This Court has subject matter jurisdiction over the proceedings herein
pursuant to 28 U.S.C. 1334. Confirmation of the Plan presents a core bankruptcy
matter under 28 U.S.C. 157, over which this Court has jurisdiction to enter a
final order. Venue of these cases is properly in this district pursuant to 28
U.S.C. 1408 and 1409.
C. All holders of Claims and Interests and other parties in interest
including Governmental Units have received due, proper and adequate notice of
the Confirmation Hearing and have had an opportunity to appear and be heard at
the Confirmation Hearing. The procedures by which the Ballots were distributed
to holders of Claims and Interests and were tabulated were fair, properly
conducted and in accordance with the Order Approving Disclosure Statement, the
Bankruptcy Code, the Bankruptcy Rules, the local rules of the Bankruptcy Court
and all other applicable laws, rules and regulations.
D. The Plan complies with the applicable provisions of the Bankruptcy Code.
E. The Plan properly classifies Claims and Interests and properly
designates a convenience class as provided under 1122 of the Bankruptcy Code.
Those electing convenience class treatment in Class A10 are set forth in the
Affidavit of Diane Rocano filed herein on November 3, 2000. The Claims and
Interests within each Class
<PAGE>
designated under the Plan are substantially similar. The Plan properly specifies
the classes of Claims and Interests which are impaired and not impaired under
the Plan, as required by 1123(a)(2) of the Bankruptcy Code, and properly
specifies the treatment of each class of Claims and Interests which is impaired
under the Plan, as required by 1123(a)(3) of the Bankruptcy Code. The Plan
provides the same treatment for each Claim or Interest of a particular class,
unless the holder of a particular Claim or Interest agrees to a less favorable
treatment, in accordance with 1123(a)(4) of the Bankruptcy Code. The Plan
provides adequate means for its implementation in accordance with 1123(a)(5) of
the Bankruptcy Code. The Plan provides for and duly authorizes the amendments
provided for in the Amended and Restated Articles of Incorporation and Amended
and Restated Bylaws of Reorganized CMI. In addition, the Plan provides for and
duly authorizes the actions necessary to effect the Affiliate Reorganization as
outlined in Section IX.L. of the Plan, the Recapitalization Financing, the New
Debt, the issuance of the New Securities and all securities issuable upon
conversion of the New Securities (including the securities issuable upon
conversion of the Class A9/A10 Notes in certain limited circumstances related to
maintenance of REIT status, referred to herein as the "Noteholder Preferred
Stock"), and the amendments provided for in the Second Amended and Restated
Stock Option Plan. The Plan complies with 1123(a)(6) of the Bankruptcy Code and
is consistent with the interests of creditors and equity security holders and
with public policy with respect to the manner of selection of officers and
directors and successors thereto in accordance with 1123(a)(6) and (a)(7) of the
Bankruptcy Code.
<PAGE>
F. The Debtors, as proponents of the Plan, and the CMI Equity Committee, as
co-proponent of the Plan, have complied with all applicable provisions of the
Bankruptcy Code.
G. The Debtors have served copies of the Disclosure Statement, Plan and the
other documents in the Solicitation Package (as defined in the Order Approving
Disclosure Statement) as required by the Order Approving Disclosure Statement
and have caused appropriate notice to be published in The Wall Street Journal,
The Washington Post and The Baltimore Sun as required by the Order Approving
Disclosure Statement. The procedures by which the ballots and master ballots for
acceptance or rejection of the Plan were solicited were fair, properly conducted
and in accordance with the Bankruptcy Code, the Bankruptcy Rules, the Local
Bankruptcy Rules and all other applicable laws, rules and regulations. As
provided in 1125(e) of the Bankruptcy Code, the Debtors, the CMI Equity
Committee and their respective agents, directors, officers, employees and
professionals, as applicable, have acted in good faith and in accordance with
the applicable provisions of the Bankruptcy Code.
H. The Plan has been proposed in good faith and not by any means forbidden
by law. The Plan will fairly achieve a result consistent with the objectives and
purposes of the Bankruptcy Code. Based upon the evidence, it is more probable
than not that the Plan will allow the Debtors to reorganize by providing them
with a capital structure that will enable them to satisfy their obligations with
sufficient liquidity and resources to fund necessary expenditures and to
otherwise conduct their businesses. Further, the Plan itself and the arm's
length negotiations among the Debtors, the CMI Equity Committee, the Official
Committee of Unsecured Creditors of CMI (the "CMI
<PAGE>
Unsecured Committee"), the Official Committee of Unsecured Creditors of CMM
(the "CMM Unsecured Committee"), and the Debtors' secured creditors leading to
the Plan's formulation, and the overwhelming acceptance by creditors and
interest holders of the Plan, provide independent evidence that the Plan was
proposed in good faith.
I. In accordance with 1129(a)(4) of the Bankruptcy Code, any payment made
or to be made by the Debtors, the CMI Equity Committee or any person issuing
securities or acquiring property under the Plan, for services or for costs and
expenses in, or in connection with, these cases, or in connection with the Plan
and incident to these cases, has been approved by, or will be subject to the
approval of, this Court as reasonable.
J. The identity and affiliations of those individuals proposed to serve,
after confirmation of the Plan and commencing on the Effective Date, as
directors and officers of the Debtors have been disclosed in sufficient detail
to comply with the requirements of 1129(a)(5) of the Bankruptcy Code. The
appointment to or continuance in office of such individuals is consistent with
the interests of creditors and equity security holders and with public policy.
The identity of insiders who are proposed to be employed or retained by the
Reorganized Debtors and the nature of their compensation, to the extent known,
have been disclosed.
K. No rate change within the meaning of 1129(a)(6) of the Bankruptcy Code
is provided for in the Plan.
L. Each impaired class of Claims and Interests in which there are any
creditors or equity interest holders has accepted the Plan or is not impaired
under the Plan. There are no holders of Claims in Classes A4, A6, A7, A11, B2,
C1, C2 or C5,
<PAGE>
except to the extent, if any, First Union National Bank is determined to
have an Allowed Class A7 Claim.
M. Each holder of an impaired Claim or Interest has accepted the Plan or
will receive or retain under the Plan property of a value, as of the Effective
Date of the Plan, that is not less than the amount, if any, that such holder
would receive or retain if the Debtors were liquidated under chapter 7 of the
Bankruptcy Code on such date.
N. There are no holders of Claims who have made a 1111(b)(2) election.
O. The Plan has been duly accepted in accordance with the provisions of
1126 of the Bankruptcy Code, and each class of Claims and Interests in which
there is a creditor or equity security holder has duly accepted the Plan by the
requisite number and amount or is not impaired under the Plan.
P. Except as otherwise agreed, the Plan provides that the holders of
Allowed Claims of a kind specified in 507(a)(1) through (a)(7) of the Bankruptcy
Code, to the extent applicable, will be paid under the Plan provisions therefor
in accordance with 1129(a)(9) of the Bankruptcy Code.
Q. At least one class of Claims that is impaired under the Plan has
accepted the Plan, determined without including any acceptance of the Plan by
any insider. With respect to Holdings, there are no non-insider holders of
Claims in any impaired class and thus no non-insider class of Claims is impaired
under the Plan. The insider class of Claims voted to accept the Plan.
R. The Plan is feasible. The Debtors have adequately demonstrated that
confirmation of the Plan is not likely to be followed by the liquidation, or the
need
<PAGE>
for further financial reorganization, of any Debtor, Reorganized Debtor, or
any successor to any Reorganized Debtor under the Plan, except to the extent
provided in the Plan for the possible dissolution of Reorganized Holdings at
some time after the Effective Date. Upon the Effective Date, the Reorganized
Debtors should have sufficient cash flow and capital resources to pay their
obligations and liabilities as they become due and to satisfy their capital
needs for the conduct of their businesses.
S. All fees payable under 28 U.S.C. 1930 have been paid or will be paid by
the Debtors or Reorganized Debtors, as applicable, when such fees are due and
owing.
T. The Plan provides for the continuation after the Effective Date of all
retiree benefits (if any), as that term is defined in 1114(a) of the Bankruptcy
Code, by the Reorganized Debtors, as applicable, as maintained or established by
the Debtors prior to the Confirmation Date.
U. All impaired classes of Claims and Interests in which there are
creditors or equity interest holders have voted overwhelmingly to accept the
Plan. The Plan does not discriminate unfairly and is fair and equitable within
the meaning of the Bankruptcy Code. The principal purpose of the Plan is not the
avoidance of taxes or the avoidance of the application of 5 of the Securities
Act of 1933.
V. The Debtors' decisions regarding assumption and rejection of executory
contracts and unexpired leases are based on and are within the sound business
judgment of the Debtors and are in the best interests of the Debtors and their
respective bankruptcy estates. The Loan Sale Agreement dated May 29, 1998
between CMI and
<PAGE>
CRIIMI MAE CMBS Corp. is an executory contract assumed by CMI in accordance
with the Plan.
W. The conditions precedent to confirmation of the Plan as set forth in
Article X of the Plan have been satisfied.
X. Pursuant to the applicable provisions of the Bankruptcy Code and other
applicable law, including 105 and 1123 of the Bankruptcy Code and Bankruptcy
Rule 9019(a), the settlements, releases, compromises, setoffs, waivers,
discharges and injunctions set forth in the Plan are approved as integral parts
of the Plan, and are hereby approved as fair, equitable, reasonable and in the
best interests of the Debtors, Reorganized Debtors and their respective estates,
creditors and equity security holders; provided that the release as modified in
paragraph 17 hereinbelow shall control in lieu of the provisions set forth in
the second paragraph of Article XI.C of the Plan.
Y. Pursuant to 1142 of the Bankruptcy Code and 3-301 of the Maryland
General Corporation Law, no action of the directors or stockholders of the
Debtors or Reorganized Debtors will be required to authorize them (or any of
their officers, employees or agents acting on their behalf) to effectuate and
carry out the Plan and all orders of this Court relating thereto, to consummate
the transactions contemplated by the Plan and such orders, or to take or do any
other action or thing contemplated by the Plan or such orders as may be
necessary or appropriate to fully effectuate the intent and purposes thereof,
and all such actions and things hereby are or will be deemed to have been taken
or done with like effect as if they had been authorized and approved by
unanimous actions of the directors and the stockholders of the Debtors and the
Reorganized Debtors.
<PAGE>
Z. Pursuant to 1125(e) of the Bankruptcy Code, the Debtors' transmittal of
the Solicitation Packages, their solicitation of acceptances of the Plan and
their issuance and distribution of the New Securities (including any securities
issuable upon conversion of the New Securities such as the Noteholder Preferred
Stock) and any other securities pursuant to the Plan are not and will not be
governed by or subject to any otherwise applicable law, rule or regulation
governing the solicitation or acceptance of a plan of reorganization or the
offer, issuance, sale or purchase of securities. Pursuant to 1145(a) of the
Bankruptcy Code, the offer, issuance and distribution of the New Securities
(including any securities issuable upon conversion of the New Securities) and
any other securities issuable pursuant to the Plan in respect of Claims or
Interests shall be exempt from 5 of the Securities Act and any state or local
law requiring registration prior to the offer, issuance, distribution or sale of
securities. Without limiting the generality of the foregoing, pursuant to
1145(a) of the Bankruptcy Code, the following shall be exempt from 5 of the
Securities Act and any state or local law requiring registration prior to the
offer, issuance, distribution or sale of securities: (a) the offer, issuance and
distribution of the Class A9 Notes and Class A10 Notes; and (b) the offer,
issuance and distribution of any CMI Common Stock issued on the Effective Date
as payment for accrued and unpaid dividends to holders of any series of CMI
preferred stock (including the Former Series C Preferred Stock and Old Series D
Preferred Stock). Pursuant to and to the fullest extent permitted under 1145 of
the Bankruptcy Code, the resale of any of the securities referenced herein shall
be exempt from 5 of the Securities Act and any state or local law requiring
registration prior to the offer, issuance, distribution or sale of securities.
<PAGE>
AA. Pursuant to 1146(c) of the Bankruptcy Code, the issuance and
distribution of the New Securities; the incurrence of the New Debt; the
creation, modification, or recording of any security interest in connection with
the New Debt or otherwise under the Plan; the securing of the New Debt; and the
making, delivery or recording of any instrument of transfer under the Plan,
including any assignments or other instruments of transfer executed in
connection with the Plan, shall not be subject to any document recording tax,
stamp tax or other similar tax or governmental assessment, and the appropriate
state or local governmental officials or agents shall be, and hereby are,
directed to accept for filing and recordation any of the foregoing instruments
or other documents without the payment of any such tax or governmental
assessment.
BB. The Debtors have disclosed that there will be various contracts,
instruments, releases, notes, indentures and other agreements or documents and
plans to be entered into, executed and delivered, adopted or amended by them in
connection with the Plan (collectively, the "Plan Documents"), including the
following: the Amended and Restated Articles of Incorporation, Amended and
Restated Bylaws, Second Amended and Restated Stock Option Plan for Key Employees
(the "Second Amended Stock Option Plan"); all documents and agreements relating
to the New Debt including indentures, repurchase agreement, the Class A9/Class
A10 Notes, security documents, articles supplementary and each other agreement,
document or instrument to be entered into under or in connection with any New
Debt document or agreement; and all other contracts, instruments, releases and
other agreements and documents relating to or contemplated by the Plan. Pursuant
to 3-301 of the Maryland General Corporation Law, no action of the directors or
stockholders of CMI or Reorganized CMI was or will be
<PAGE>
required to authorize Reorganized CMI to enter into, execute and deliver,
adopt or amend, as the case may be, the Plan Documents, and following the
Effective Date, each of the Plan Documents to which Reorganized CMI is a party
will be a legal, valid and binding obligation of Reorganized CMI, enforceable
against Reorganized CMI in accordance with the respective terms thereof.
CC. The Second Amended Stock Option Plan, admitted into evidence as Exhibit
8 at the Confirmation Hearing, has been approved by the Board of Directors of
CMI to be effective on the Effective Date and, by voting to accept the Plan, all
holders of Class A21 Interests are deemed to have ratified and approved the
Second Amended Stock Option Plan. Additionally, upon entry of this Confirmation
Order, the Second Amended Stock Option Plan shall be deemed an exhibit to and
part of the Plan and the Bankruptcy Court shall, consistent with 3-301 of the
Maryland General Corporation Law and federal tax law, be deemed to have approved
the Second Amended Stock Option Plan on behalf of CMI's and Reorganized CMI's
stockholders and in satisfaction of 422 of the Internal Revenue Code. After the
Effective Date, the Board of Directors of Reorganized CMI may further amend or
modify the Second Amended Stock Option Plan in accordance with the terms thereof
(and subject to any other applicable restrictions), and any such further
amendment or modification shall not require amendment of the Plan.
DD. The sales of the assets constituting the CMBS Sale Portfolio, pursuant
to the Plan and as part of funding the Plan (i) were and are duly authorized,
valid, binding and enforceable and, pursuant to 363 of the Bankruptcy Code and
the Maryland General Corporation Law, required no action of the stockholders of
CMI, and (ii) were sold in accordance with all applicable laws, including
federal and state securities
<PAGE>
laws.. All shares of CMI Common Stock issued pursuant to the Plan shall,
upon issuance, be duly authorized, validly issued, fully paid and nonassessable.
EE. Any Affiliate Reorganization implemented in connection with the New
Debt as contemplated by the Plan and the Disclosure Statement, including the
transfer of certain CMI assets to an affiliated entity of CMI or Reorganized
CMI, shall be deemed duly authorized, valid, binding and enforceable. The
implementation of any such Affiliate Reorganization shall require no further
action by CMI's or Reorganized CMI's directors or stockholders.
BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, it is
therefore ORDERED that:
1. The objection to confirmation of the Plan filed by Marilyn Ruh is
overruled for the reasons set forth on the record of the Confirmation Hearing.
2. The objections to confirmation of the Plan filed by Merrill and GACC
have been settled on the terms set forth on the record of the Confirmation
Hearing.
3. The modification of the Plan proposed by the Debtors and the CMI Equity
Committee as co-proponents of the Plan and attached hereto as Exhibit 2 and the
modification reflected in paragraph 17 hereinbelow are hereby authorized and
approved, and the Plan as referenced herein and confirmed by this Order shall be
the Plan as modified by Exhibit 2 hereto and by the modification reflected in
paragraph 17 hereinbelow. In the event of any direct inconsistency between the
Plan and this Order, the terms of this Order shall govern and control. The
Debtors shall file with this Court by Praecipe a copy of the Plan as modified in
accordance with this Order, which shall constitute the Plan as confirmed by this
Order.
4. The Plan attached hereto as Exhibit 1 as modified by Exhibit 2 hereto
and paragraph 17 hereinbelow meets all of the requirements of 1129 of the
Bankruptcy Code and is hereby CONFIRMED.
5. The Distribution Record Date for purposes of the Plan and for
determining the Holders of Allowed Claims and Allowed Interests who are entitled
to receive distributions under the Plan shall be (a) with respect to Holders of
Allowed Claims, the date which is five Business Days after the Confirmation Date
and (b) with respect to Holders of Allowed Interests, the date(s) fixed by the
Board of Directors of CMI as the record date(s) for determining the Holders of
Allowed Interests entitled to receive accrued and unpaid dividends payable in
CMI Common Stock or Cash (or a combination thereof) on the Effective Date. The
same record date may apply to each Class included in the Allowed Interests that
are entitled to receive distributions under the Plan or different record dates
may be used, as necessitated by applicable Maryland General Corporation Law, New
York Stock Exchange rules (if applicable to a given Class) and CMI's constituent
documents.
6. The Debtors, the Reorganized Debtors and each other appropriate party
are hereby authorized and directed to take all actions necessary or appropriate
to enter into, implement and consummate the transactions, contracts,
instruments, releases, leases, indentures, and other agreements or documents
created in connection with or contemplated by the Plan, and to take such other
steps and perform such other acts as may be necessary to implement and
effectuate the Plan, and are further authorized and
<PAGE>
directed to execute and deliver any instrument or other document and
perform any other act that is necessary for the consummation of the Plan,
including implementation of the transactions and actions to be taken on or after
the Effective Date.
7. The Effective Date of the Plan shall occur no later than March 15, 2001
or such later date as may be (i) agreed to by the Debtors, Merrill, GACC, the
CMI Creditors' Committee, the CMM Creditors' Committee and the CMI Equity
Committee and approved by this Court, or (ii) extended by further order of the
Court upon notice and a hearing (each party reserving its right to support or
oppose any such extension).
8. As evidenced by the BSI Notice Affidavit and Publication Affidavits, the
Debtors provided proper and sufficient notice of the Confirmation Hearing and
the deadline for filing and serving objections to the Plan, and this Court
hereby approves such notice.
9. The Debtors shall continue to operate as debtors in possession, subject
to the supervision of this Court, during the period from the Confirmation Date
through and until the Effective Date, and the automatic stay imposed by 362(a)
of the Bankruptcy Code shall remain in full force and effect during such period.
All injunctions or stays imposed in these Reorganization Cases pursuant to 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.
10. This Confirmation Order shall constitute an order approving the
assumptions of executory contracts and unexpired leases described in Article VII
of the Plan, pursuant to 365 of the Bankruptcy Code, effective as of the
Effective Date. The
<PAGE>
provisions with respect to the assumption or rejection of unexpired leases
and executory contracts set forth in Article VII of the Plan are hereby
authorized and approved.
11. The Plan and its provisions shall be binding upon and inure to the
benefit of the Debtors, their respective Estates, the Reorganized Debtors, any
holder of any Claim against or any interest in any of the Debtors or Reorganized
Debtors, each of their respective predecessors, successors, assigns, agents,
officers and directors and, to the fullest extent permitted under 1141(a) of
the Bankruptcy Code and other applicable law, each other Person affected by the
Plan and any other party in interest in these Chapter 11 cases, whether or not
any Claim or Interest of any such holder or party in interest is impaired under
the Plan and whether or not any such holder or party in interest has accepted
the Plan.
12. All parties to the Recapitalization Financing shall work in good faith
to expeditiously complete the documents necessary to implement the transactions
contemplated by the Plan.
13. Except as otherwise provided in the Plan: (i) on the Effective Date,
the Debtors and the Reorganized Debtors shall be deemed discharged and released
to the fullest extent permitted by 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 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 Claim, debt or Interest
is filed or deemed filed pursuant to 501 of the Bankruptcy Code, (b) a Claim or
Interest based on such Claim,
<PAGE>
debt or Interest is allowed pursuant to 502 of the Bankruptcy Code, or (c)
the holder of a Claim or Interest based on such Claim, debt or Interest is
impaired under the Plan or 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 herein or in the Plan,
upon the Effective Date, this Confirmation Order shall act as a discharge of any
and all Claims against and all debts and liabilities of the Debtors, as provided
in 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.
14. Except as otherwise provided in the Plan, 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
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
<PAGE>
with or is inconsistent with the provisions of the Plan or this
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.
15. Effective as of the Effective Date, none of the Debtors, Reorganized
CMI, Reorganized CMM or Reorganized Holdings, the members of the Committees, the
Indenture Trustee, 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 this
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 Section XI.B. of the Plan
shall limit the liability of any Person for breach of any express obligation it
has under the terms of the Plan, 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 the Plan,
except to the extent expressly provided herein or for any breach of a duty of
care owed to any other Person occurring after the Effective Date.
<PAGE>
16. On the Effective Date, each of the Debtors shall release
unconditionally, and hereby is deemed to release unconditionally (i) each of the
Debtors'
<PAGE>
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") and (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") 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 after the Petition
Date and up to and including the Effective Date in any way relating to the
Reorganization Cases, the Plan or the Disclosure Statement.
17. On the Effective Date, (i) each holder of a Claim or Interest who has
voted in favor of the Plan shall be deemed to have unconditionally released the
Debtor Releasees and the Committee 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 after the Petition Date and up to
and including the Effective Date in any way relating to 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 herein or in the Plan; and (ii) each holder of a Claim or Interest
shall
<PAGE>
be deemed to have unconditionally released the Debtor Releasees and the
Committee 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 after the Petition Date and up to and including
the Effective Date (the "Released Rights"), for which Released Rights the holder
is entitled to a claim or interest that receives or retains value as provided in
the Plan.
18. 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 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,
<PAGE>
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. In addition,
Reorganized CMI shall fully indemnify the CMI Equity Committee and its
professionals against any claims, liabilities, actions, suits, damages, fines,
judgments or expenses (including reasonable attorneys' fees and expenses) as a
result of or arising from the CMI Equity Committee being a co-proponent of the
Plan and Disclosure Statement provided, however, that the foregoing
indemnification shall not apply to any liabilities arising from gross negligence
or willful misconduct of any such indemnitee. The reference herein to the term
"Indemnitee" shall include the CMI Equity Committee and its professionals. 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
<PAGE>
proceeding (including any impleaded parties) include both the Indemnitee
and Reorganized CMI, Reorganized CMM or Reorganized 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. Anything herein
to the contrary notwithstanding, no Securities Claims shall be treated as part
of Classes A9 or A10 under the Plan.
19. Except as otherwise provided in the Plan or 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 544 through 550 of the
Bankruptcy Code or any similar provisions of state law, or any other statute or
legal theory.
<PAGE>
20. 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 (except that such existence may continue for the sole
purpose of resolving any issues relating to fee applications of professionals).
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 or in opposition to any application for allowance of compensation and
reimbursement of expenses pending as of, or timely filed after, the Effective
Date.
21. 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 this 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.
<PAGE>
22. All professionals or other Persons requesting compensation or
reimbursement of expenses pursuant to 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.
23. Except as otherwise 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.
<PAGE>
24. 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.
25. Effective as of the Effective Date, the Plan shall be binding upon and
enforceable against all holders of Claims against and Interests in any of the
Debtors or the Reorganized Debtors, and all parties in interest including
Governmental Units, in accordance with its terms.
26. Each and every federal, state and local governmental agency or
department is hereby directed to accept any and all documents and instruments
necessary, useful or appropriate to effectuate, implement and consummate the
transactions contemplated by the Plan or this Order.
27. Pursuant to 1146(c) of the Bankruptcy Code, the implementation and
enforcement of any provision 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
<PAGE>
under any law imposing a stamp tax, transfer tax or a similar tax. The
appropriate state or local government officials or agents shall be, and hereby
are directed to accept for filing and recordation of any such "instrument of
transfer" or other documents without the payment of any such tax or governmental
assessment.
28. Each of the matters provided for under the Plan involving the corporate
structure of any Debtor or Reorganized Debtor or corporate action to be taken by
or required of any Debtor or Reorganized Debtor (including, without limitation,
approval of the issuance of the New Securities and any securities issuable upon
conversion of the New Securities such as the Noteholder Preferred Stock) shall,
as of the Effective Date, be deemed to have occurred and be effective as
provided herein, and shall be authorized and approved in all respects without
any requirement of further action by stockholders or directors of any of the
Debtors or Reorganized Debtors.
29. The declaration of any accrued and unpaid dividends to be paid (or
issued, if the accrued and unpaid dividends are paid in CMI Common Stock) by
Reorganized CMI on the Effective Date, with respect to CMI's Series B Preferred
Stock, Former Series C Preferred Stock, Old Series D Preferred Stock and Series
E Preferred Stock, shall be made by CMI's board of directors. CMI's board of
directors shall also determine (to the extent permitted under the Plan and the
Plan Documents) whether such respective dividends, as and if declared, shall be
paid in CMI Common Stock or Cash (or a combination thereof).
30. Each Debtor shall, as a Reorganized Debtor, continue to exist as of the
Effective Date as a separate corporate or limited partnership entity, as
applicable, with all of the powers of a corporation or limited partnership under
applicable law and
<PAGE>
without prejudice to any right to alter or terminate such existence
(whether by merger or otherwise) under applicable state law. Except as otherwise
provided in or contemplated by the Plan, the Disclosure Statement, the Plan
Documents and any other contracts, instruments, releases, or other agreements
and documents of the Debtors approved by this Court, on the Effective Date, all
property of the respective Estates of the Debtors shall vest in the applicable
Reorganized Debtor, free and clear of all Claims, liens, charges, other
encumbrances and Interests of holders of Claims and Interests. Except as
otherwise provided in the Plan, the Disclosure Statement or this Confirmation
Order, on and after the Effective Date, each Reorganized Debtor may operate its
businesses and may use, acquire and dispose of property and compromise or settle
any Claims or Interests without supervision or approval by the Court and free of
any restrictions of the Bankruptcy Code or Bankruptcy Rules. Without limiting
the foregoing, each Reorganized Debtor may pay the charges that it incurs on or
after the Effective Date for professionals' fees, disbursements, expenses or
related support services without application to the Court.
31. Pursuant to 1142(b) of the Bankruptcy Code, the Maryland General
Corporation Law, the Debtors and the Reorganized Debtors, and each of them,
shall be, and hereby is, authorized to effectuate the Plan, the actions and
transactions contemplated by the Plan and this Confirmation Order, and to take
any proceedings or actions provided for or contemplated by the Plan or this
Confirmation Order, all without further action by its directors or stockholders,
and with like effect as if such actions had been taken by unanimous action of
the directors and stockholders of the Debtors or the Reorganized Debtors, as
applicable.
<PAGE>
32. As of the time at which the conditions to the occurrence of the
Effective Date set forth in the Plan are satisfied or duly waived, pursuant to
the Maryland General Corporation Law and 1123(a) and 1142(b) of the Bankruptcy
Code, CMI or Reorganized CMI shall be, and hereby is, authorized to make the
filings referenced in paragraph 33 below, as contemplated by the Plan and the
Disclosure Statement, and in accordance with applicable terms of the Plan, the
Exhibits thereto, the Disclosure Statement, the Exhibits thereto, and this
Confirmation Order.
33. As of the Effective Date, Reorganized CMI shall be, and hereby is,
authorized and directed to amend and restate its articles of incorporation and
bylaws substantially in the form of Exhibits 6 and 7, respectively, which were
admitted into evidence at the Confirmation Hearing, and deemed part of the Plan,
and to prohibit the issuance of nonvoting equity securities to the extent set
forth in such Exhibits and required by 1123(a) of the Bankruptcy Code;
provided, however, that Reorganized CMI shall be further authorized to further
amend Exhibit 6, as of the Effective Date, to provide for (a) amendments to
Exhibit B to Exhibit 6 (the Series E Preferred Stock Articles) consistent with
the terms and conditions set forth in Exhibit 3 to the Plan, (b) the addition of
an Exhibit D to Exhibit 6, which Exhibit D shall consist of the Articles
Supplementary to Articles of Incorporation in respect of Series G Redeemable
Cumulative Dividend Preferred Stock which were filed by CMI with the State
Department of Assessments and Taxation of Maryland subsequent to the
distribution of the Disclosure Statement and Plan in connection with the
solicitation of acceptances of the Plan, (c) articles supplementary for the
Noteholder Preferred Stock (if necessary under the circumstances provided for in
the Plan), and (d) amendments to Exhibit 6 to
<PAGE>
effect certain other nonsubstantive changes relating to factual information
as to authorized shares of preferred stock and directors as of the Effective
Date.
34. Without limiting the generality or effect of this Confirmation Order,
pursuant to 1142(b) of the Bankruptcy Code and the Maryland General Corporation
Law, CMI or Reorganized CMI, shall be, and hereby is, authorized to cause to be
filed with the Secretary of State or other applicable state or local official,
the Amended and Restated Articles of Incorporation, and take or cause to be
taken all such other actions, including the making of appropriate filings or
recordings, as may be required under appropriate provisions of applicable law or
as any of the officers of CMI or Reorganized CMI may determine are necessary or
appropriate, in connection with the Amended and Restated Articles of
Incorporation. After the Effective Date, Reorganized CMI shall be, and hereby
is, authorized to further amend or restate its Amended and Restated Articles of
Incorporation or Amended and Restated Bylaws as permitted by appropriate
provisions of Maryland General Corporation Law and such articles or bylaws,
provided that any such amendment or restatement is not inconsistent with the
terms of the Plan (for so long as any of the New Debt remains outstanding).
35. Each officer of CMI or Reorganized CMI shall be, and hereby is,
authorized to execute, deliver, file and have recorded the Amended and Restated
Articles of Incorporation and to take such other actions on behalf of CMI or
Reorganized CMI as such person may determine to be required under appropriate
provisions of Maryland General Corporation Law in connection with the Amended
and Restated Articles of Incorporation, and without limiting the generality or
effect of the foregoing, the Secretary or any Assistant Secretary of CMI or
Reorganized CMI shall be, and hereby is,
<PAGE>
authorized to certify or attest to any of the foregoing actions. The
execution of any such document or the taking of any such action shall be, and
hereby is, deemed conclusive evidence of the authority of such person so to act.
36. The Amended and Restated Articles of Incorporation shall be, and hereby
are, deemed effective immediately upon the filing thereof with the Secretary of
State or other applicable state official, all as provided herein.
37. The appointment of the nine persons identified in the Schedule of
Directors and Officers of Reorganized CMI, introduced into evidence at the
Confirmation Hearing as Exhibit 10, as the initial directors of Reorganized CMI
who continue to be willing to serve as of the Effective Date as the initial
directors of Reorganized CMI shall be, and hereby is, approved. In addition, the
appointment of the officers of Reorganized CMI on the Effective Date as the
initial officers of Reorganized CMI as of the Effective Date, shall be, and
hereby is, approved.
38. The appointment of the respective officers and directors of Reorganized
CMM, on the Effective Date as the initial officers and directors of Reorganized
CMM, identified in the Schedule of Directors and Officers of Reorganized CMM and
introduced into evidence at the Confirmation Hearing as Exhibit 10, shall be,
and hereby is, approved.
39. All persons serving as officers or directors of any Reorganized Debtor
shall serve in the capacities in which they are to serve as of the Effective
Date until their successors are duly elected or appointed and qualified in
accordance with the terms of the applicable articles of incorporation, bylaws
and applicable law, or until the earlier of the death, resignation or removal of
any such director or officer.
<PAGE>
40. Pursuant to 1142(b) of the Bankruptcy Code, 3-301 of the Maryland
General Corporation Law and federal tax law, without further action by the Court
or the stockholders or the board of directors of CMI or Reorganized CMI, and
without limiting the power or authority of Reorganized CMI following the
Effective Date to take any and all such actions as may be permitted or required
by applicable nonbankruptcy law, Reorganized CMI shall be, and hereby is, deemed
to have adopted the Second Amended and Restated Stock Option Plan, substantially
in the form set forth in Exhibit 8, which was introduced into evidence at the
Confirmation Hearing, hereby deemed an exhibit to and part of the Plan.
41. Pursuant to 1142(b) of the Bankruptcy Code and 3-301 of the Maryland
General Corporation Law, on the Effective Date, Reorganized CMI shall be, and
hereby is, authorized and directed to execute, deliver and perform its
obligations under all Plan Documents relating to the New Debt (including with
respect to the Noteholder Preferred Stock), and to take all such other actions
and execute, deliver, record and file all such other agreements, instruments and
other documents as any of its officers may determine are necessary or
appropriate in connection with the New Debt (collectively, the "New Debt
Documents"), including the making of such filings as may be required under
applicable state and federal law, such as filings as are required to qualify
indentures under the Trust Indenture Act of 1939, all without further action by
its directors or stockholders, and with like effect as if such actions had been
taken by unanimous action of the directors and stockholders of Reorganized CMI.
The New Debt Documents, as in effect on the Effective Date, shall be
substantially consistent with the terms and provisions of the Plan, with such
changes and modifications thereto as may be
<PAGE>
approved by the mutual agreement of the officer of CMI or Reorganized CMI
executing the same on behalf of CMI or Reorganized CMI, Merrill, GACC, the CMI
Unsecured Committee and the CMI Equity Committee. After the Effective Date,
Reorganized CMI may, pursuant to the authorization thereof by the Reorganized
CMI Board of Directors in accordance with the applicable provisions of the
Maryland General Corporation Law, and, pursuant to this Confirmation Order and
such authorization, take all such other actions, and file all such other
agreements, instruments and other documents, as may be contemplated by the New
Debt Documents.
42. Without limiting the generality of the preceding paragraph, the
officers of CMI are, and each of them hereby is, authorized to negotiate,
approve, execute, deliver and perform (a) definitive New Debt Documents
evidencing the New Debt financing to be provided by Merrill and GACC, and (b)
definitive New Debt Documents, including indentures, notes and articles
supplementary for the Noteholder Preferred Stock, evidencing the New Debt
financing to be provided by certain of CMI's unsecured creditors, with the terms
and conditions of such respective definitive documents to be substantially
consistent with the terms and provisions of the Plan with such changes therein
as the officer executing the same shall so approve, as long as such changes are
approved by all parties that are entitled to approve them under the terms of the
Plan.
43. Pursuant to 1142(b) of the Bankruptcy Code, as a condition precedent
to a holder of an Allowed Claim receiving New Debt pursuant to the Plan, (i) if
such holder is a holder of a Claim in Class A3 or A5, such holder shall have
executed and delivered to the Reorganized Debtors the applicable agreements
governing the applicable
<PAGE>
New Debt, and (ii) if such holder is a holder of any Claim in Class A9 or
A10, such holder shall be required to surrender any note or other evidence of
such holder's Claim pursuant to a letter of transmittal furnished by Reorganized
CMI (the "Letter of Transmittal"), as provided for under the Plan. The Letter of
Transmittal shall include, among other provisions, customary provisions with
respect to the authority of the Claim holder to act and the authenticity of any
signatures required thereon.
44. As a condition precedent to receiving any distribution pursuant to the
Plan on account of an Allowed Claim evidenced by the instruments, securities or
other documentation canceled pursuant to Section V.E. of the Plan, the holder of
such Allowed Claim shall tender the applicable instruments, securities or other
documentation evidencing such Allowed Claim to the applicable Disbursing Agent
or shall otherwise comply with the provisions of the Plan.
45. From and after the close of business on the Distribution Record Date,
the transfer of any Old Senior Note or any interest therein, including the
beneficial ownership thereof, shall be, and hereby is, permanently enjoined and
prohibited. As of the close of business on the Distribution Record Date, the
transfer register for the Old Senior Notes as maintained by CMI, the Indenture
Trustee or its agents, shall be closed. The participants, the depositories, the
disbursing agent, the Indenture Trustee and their respective agents, as
appropriate, shall not be required to recognize the purported transfer of any
Old Senior Notes.
46. On the Effective Date, all securities, instruments and agreements
governing, entered into in connection with or relating to the Old Senior Notes,
including the indenture related thereto, in each case shall be deemed
terminated, cancelled and
<PAGE>
extinguished, and except as otherwise provided in the Plan or this
Confirmation Order, the Debtors, on the one hand, and the Indenture Trustee, on
the other hand, shall be released from any and all obligations under the
indenture except with respect to the payments required to be made to the
Indenture Trustee as provided in the Plan or with respect to such other rights
of such Indenture Trustee that, pursuant to the terms of such indenture, survive
the termination of such indenture. Without limiting the effect of the provisions
of this Confirmation Order, termination of the indenture shall not impair the
rights of the holders of Old Senior Notes to receive distributions on account of
Old Senior Notes pursuant to the Plan, provided, that any Class A9/A10 Notes to
be distributed pursuant to the Plan on account of any Allowed Claim represented
by an Old Senior Note held in physical, registered, certificated form shall,
pending such surrender, be treated as an undeliverable distribution pursuant to
the Plan, and provided, further, that Old Senior Notes held in book-entry form
through bank and broker nominee accounts shall be mandatorily exchanged for
Class A9/A10 Notes as set forth in the Plan, and Old Senior Notes held in bearer
form through a broker or bank participant in a clearing system shall be
mandatorily exchanged for Class A9/A10 Notes through the facilities of such
nominees and the securities depository holding such Old Senior Notes on behalf
of the broker or bank as set forth in the Plan.
47. As of the Effective Date, pursuant to 1142(b) of the Bankruptcy Code
and 3-301 of the Maryland General Corporation Law, as applicable, the
appropriate Reorganized Debtors shall be, and hereby are, authorized to execute,
deliver and perform their respective obligations under all other agreements and
documents contemplated by the Plan, and to take all such other actions and
execute, deliver, record
<PAGE>
and file all such other agreements, instruments and other documents as any
of their respective officers may determine are necessary or appropriate in
connection with such other agreements, all without further action by their
respective directors or stockholders, and with like effect as if such actions
had been taken by unanimous action of the directors and stockholders of the
appropriate Reorganized Debtors. Such other agreements shall be substantially
consistent with the terms and provisions of the Plan with such modifications
thereto as may be approved by the officer of the Debtor or Reorganized Debtor
executing the same on behalf of such Debtor or Reorganized Debtor, provided that
such modifications shall have been approved by each party entitled to approve
such other agreements under the terms of the Plan.
48. The approvals and authorizations specifically set forth in this
Confirmation Order are nonexclusive and are not intended to limit the authority
of any Debtor or Reorganized Debtor to take any and all actions necessary or
appropriate to implement, effectuate and consummate the Plan, this Confirmation
Order and the respective transactions contemplated thereby and hereby. Without
limiting the generality or effect of any other provision of this Confirmation
Order, the appropriate Debtors and Reorganized Debtors shall be, and hereby are,
specifically authorized and empowered to take any and all such actions as any of
their respective officers may determine are necessary or appropriate to
implement, effectuate and consummate the Plan and this Confirmation Order and
the transactions respectively contemplated thereby and hereby, all in accordance
with the terms of the Plan, the Disclosure Statement and this Confirmation
Order. Each of the officers of each Debtor and Reorganized Debtor shall be, and
hereby is, authorized to execute, deliver, file or record such contracts,
<PAGE>
instruments, releases, notes, indentures, mortgages, deeds, assignments, leases
or other agreements or documents and take such other actions as such officer may
determine are necessary or appropriate to effectuate and further evidence the
terms and conditions of the Plan and this Confirmation Order and the
transactions respectively contemplated thereby and hereby, all without further
application to or order of this Court and whether or not such actions or
documents are specifically referred to in the Plan, the Disclosure Statement,
the Disclosure Statement Order, this Confirmation Order or the Exhibits to any
of the foregoing, and the Secretary or any Assistant Secretary of each such
Debtor or Reorganized Debtor shall be, and hereby is, authorized to certify or
attest to any of the foregoing actions. To the extent that, under applicable
nonbankruptcy law, any of the foregoing actions would otherwise require the
consent or approval of the directors or stockholders of any Debtor or
Reorganized Debtor, this Confirmation Order shall constitute such consent or
approval, and such actions shall be, and hereby are, deemed to have been taken
by unanimous action of the directors and stockholders of the appropriate Debtor
or Reorganized Debtor.
49. Until these cases are closed, to the maximum extent permitted by the
Bankruptcy Code and other applicable law, this Court shall have jurisdiction of
all matters arising out of, or related to, any of the Reorganization Cases or
the Plan pursuant to, and for the purpose of, 105(a) and 1142 of the
Bankruptcy Code, including, without limitation, jurisdiction to:
a. 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
<PAGE>
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;
b. 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;
c. 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;
d. Ensure that distributions to holders of Allowed Claims or Allowed
Interests are accomplished pursuant to the provisions of the Plan;
e. 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;
f. 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 this Confirmation Order,
except as otherwise provided herein;
g. Resolve any cases, controversies, suits or disputes that may arise in
connection with the consummation, interpretation or enforcement of the Plan or
this Confirmation Order, including the release and injunction provisions set
forth in and
<PAGE>
contemplated by the Plan and this Confirmation Order, or any entity's
rights arising under or obligations incurred in connection with the Plan or this
Confirmation Order;
h. Enter such Orders as may be necessary or appropriate to correct any
defect, cure any omission, or reconcile any inconsistency in the Plan or this
Confirmation Order as may be necessary to carry out the purposes and intent of
the Plan;
i. Enter such Orders as may be necessary or appropriate to enforce,
implement or interpret the terms and conditions of the Plan and resolve any
objections filed with respect to any actions proposed to be taken in connection
with or pursuant to the provisions of the Plan;
j. 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;
k. 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 541 through 553 of the Bankruptcy Code;
l. Determine matters concerning state, local or federal taxes pursuant to
346, 505, 525, 1146 and any other tax-related provisions of the Bankruptcy
Code;
m. Enter such Orders as may be necessary or appropriate to enforce and
interpret the provisions of this Confirmation Order;
<PAGE>
n. Subject to any restrictions on modifications provided in the Plan or in
any contract, instrument, release, indenture or other agreement or document
created in connection with the Plan, modify the Plan before or after the
Effective Date pursuant to 1127 of the Bankruptcy Code or modify the Disclosure
Statement, this 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 this Confirmation Order, or remedy any
defect or omission or reconcile any inconsistency in any Bankruptcy Court Order,
the Plan, the Disclosure Statement, this 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 this
Confirmation Order, in such manner as may be necessary or appropriate to
consummate the Plan, to the extent authorized by the Bankruptcy Code;
o. 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 this
Confirmation Order;
p. Enter and implement such Orders as are necessary or appropriate if this
Confirmation Order is for any reason modified, stayed, reversed, revoked or
vacated;
q. Except as otherwise provided in the Plan, or with respect to specific
matters in this 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, this
Confirmation Order or any contract,
<PAGE>
instrument, release, indenture or other agreement or document created in
connection with or pursuant to the Plan, the Disclosure Statement or this
Confirmation Order; and
r. Enter an Order or Orders closing the Reorganization Cases.
50. Pursuant to Bankruptcy Rules 2002(f)(7) and 2030(c), the Debtors or the
Reorganized Debtors are hereby directed to serve a notice of entry of this
Confirmation Order and the establishment of bar dates for certain Administrative
Claims hereunder, substantially in the form of Exhibit 3 attached hereto and
incorporated herein by reference (the "Confirmation Notice"), on all parties
that received notice of the Confirmation Hearing, no later than 15 business days
after the Confirmation Date; provided, however, that the Debtors or the
Reorganized Debtors shall be obligated to serve the Confirmation Notice only on
the record holders of Claims or Interests as of the Confirmation Date.
51. The Debtors are hereby directed to publish the Confirmation Notice once
in The Wall Street Journal (national edition), The Washington Post and The
Baltimore Sun no later than 15 business days after the Confirmation Date, and in
addition by posting it on the Debtors' website.
52. Once the Effective Date occurs, the Reorganized Debtors are hereby
directed to file notice thereof with this Court and serve a copy thereof on all
persons on the Limited Mailing Matrix in these cases.
53. Except as otherwise hereafter directed by this Court, notice and
service of all subsequent pleadings and papers in these cases after the
Effective Date shall be limited to (a) the Reorganized Debtors and their
counsel, (b) the Office of the Assistant United States Trustee, (c) any party
affected by the relief sought, (d) the
<PAGE>
indenture trustee for the Class A9/A10 Notes, and (e) any party requesting
notice by delivering a copy of such request to Venable, Baetjer and Howard, LLP
and Akin, Gump, Strauss, Hauer & Feld, LLP (at the addresses appearing at the
end of this Order), counsel for the Reorganized Debtors.
54. The failure to reference or discuss any particular provisions of the
Plan in this Confirmation Order shall have no effect on the validity, binding
effect and enforceability of such provisions, all of which provisions are hereby
approved and fully effective from and after the Effective Date of the Plan.
55. As used herein, the use of the plural of any word shall include the
singular; the use of the singular of any word shall include the plural; and the
use of any gender shall include all genders. SO ORDERED.
Dated: November 22, 2000. _________/s/________________
DUNCAN W. KEIR
United States Bankruptcy Judge
cc: Richard L. Wasserman, Esquire
Venable, Baetjer and Howard, LLP
1800 Mercantile Bank & Trust Building
Two Hopkins Plaza
Baltimore, Maryland 21201
Stanley J. Samorajczyk, Esquire
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W., Suite 400
Washington, D.C. 20036
Morton A. Faller, Esquire
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
11921 Rockville Pike, 3rd Floor
Rockville, Maryland 20852-2743
<PAGE>
Clifford J. White III, Esquire
Office of U.S. Trustee
6305 Ivy Lane
Greenbelt, MD 20770
Daniel M. Lewis, Esquire
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004-1206
Michael St. Patrick Baxter, Esquire
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044-7566
Paul M. Nussbaum, Esquire
Whiteford, Taylor & Preston, LLP
Seven Saint Paul Street, Suite 1400
Baltimore, MD 21202-1626
1 Unless otherwise specified, capitalized terms and phrases used herein
have the meanings assigned to them in the Plan. In addition, any term used in
the Plan or this Confirmation Order (as defined herein) that is not defined in
the Plan or this Confirmation Order, but that is used in the Bankruptcy Code,
the Bankruptcy Rules or the Local Bankruptcy Rules, shall have the meaning
assigned to that term in the Bankruptcy Code, the Bankruptcy Rules or the Local
Bankruptcy Rules. The definitions set forth in Article II of the Plan shall
apply to this Confirmation Order. If there is any direct inconsistency between
the terms of the Plan and the terms of this Confirmation Order, the terms of
this Confirmation Order shall control.
2 Beneficial owners of Notes and Equity Interests were directed to return
their ballots to the Master Ballot Agents from whom they received their ballots
no later than 2:00 p.m. Eastern Time on October 20, 2000.
3 To the extent any finding of fact contained herein shall later be
determined to be a conclusion of law, it shall be so deemed, and to the extent
any conclusion of law contained herein shall later be determined to be a finding
of fact, it shall be so deemed.
<PAGE>
EXHIBIT 99.2
Susan B. Railey
For shareholders and securities brokers
(301) 468-3120
James T. Pastore
For news media
(202) 546-6451 FOR IMMEDIATE RELEASE
Judge Approves CRIIMI MAE Plan to Pay off Creditors
and Emerge from Bankruptcy
ROCKVILLE, MD, November 27, 2000 - (NYSE:CMM) - Judge Duncan W. Keir of the
United States Bankruptcy Court for the District of Maryland, Greenbelt Division,
has signed an order confirming the plan of reorganization under which CRIIMI MAE
Inc. and two affiliated companies will emerge from bankruptcy.
The order provides for an effective date for the reorganization of no later
than March 15, 2001, unless the parties and the court agree to extend the date
or the court itself extends the date. Despite the March 15, 2001 date, the
parties are working to complete all operative documents as soon as possible.
The company's emergence from bankruptcy is subject to the completion and
execution of documents for the recapitalization financing to be provided by the
company's unsecured creditors and two major secured creditors, Merrill Lynch
Mortgage Capital Inc. (Merrill Lynch) and German American Capital Corporation
(GACC).
The confirmed reorganization plan provides for the payment of all allowed
claims of secured and unsecured creditors in full. The plan calls for paying the
creditors through recapitalization financing of approximately $847 million,
consisting of approximately $267 million of secured financing from Merrill Lynch
and GACC, approximately $161 million of secured financing from certain existing
unsecured creditors and approximately $419 million of proceeds from already
completed sales of commercial mortgage-backed securities.
More information on CRIIMI MAE is available on its web site -
www.criimimaeinc.com - or for investors, call Susan Railey, 301-468-3120, or for
news media, call Jim Pastore, 202-546-6451.
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 uncertainty of the capital
markets; the ability of the Company to obtain recapitalization financing as
contemplated by the Company's plan of reorganization; the ability of relevant
parties to finalize and execute constituent and operative documents called for
by the Company's plan of reorganization, including with respect to the
recapitalization financing; the trends in the CMBS market; competitive
pressures; the effect of future losses on the Company's need for liquidity; the
effectiveness and consummation of the Company's plan of reorganization; the
effects of the bankruptcy proceeding on the Company's ongoing business; the
actions of CRIIMI MAE's creditors and equity security holders; the possibility
that the Company's trader election may be challenged on the grounds that the
Company is not in fact a trader in securities or that it is only a trader with
respect to certain securities and that the Company will, therefore, not be able
to mark-to-market its securities, or that it will be limited in its ability to
recognize certain losses, resulting in an increase in shareholder distribution
requirements with the possibility that the Company may not be able to make such
distributions or maintain REIT status; the likelihood that mark-to-market losses
will increase and decrease due to changes in the fair market value of the
Company's trading assets; the possibility that the Series G Dividend Preferred
Stock will not eliminate any or all of the Company's 1999 tax liability or
satisfy its REIT distribution requirements; and the outcome of litigation to
which the Company is a party, as well as the risks and uncertainties that are
set forth in the Company's disclosure statement, and from time to time in the
Company's SEC reports, including its Annual Report on Form 10-K for the year
ended December 31, 1999 and its Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000.
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