EXHIBIT 2.1
CASE NO: 00-12731-BKC-RAM
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
IN RE: CASE NO: 00-12731-BKC-RAM
CHS ELECTRONICS, INC., CHAPTER 11 PROCEEDING
DEBTOR.
_____________________________________/
AMENDED LIQUIDATING PLAN
OF REORGANIZATION OF CHS ELECTRONICS, INC.
CHS Electronics, Inc., as Debtor in possession and Debtor, hereby
submits its Amended Liquidating Plan of Reorganization under Chapter 11 of Title
11 of the United States Code.
Respectfully submitted,
Tew Cardenas Rebak Kellogg
Lehman DeMaria & Tague L.L.P.
Attorneys for the Debtor
201 South Biscayne Boulevard
Miami Center, Suite 2600
Miami, FL 33131-4336
Tel: (305) 536-1112
Fax: (305) 536-1116
By: ____________________________________
THOMAS R. LEHMAN, P.A.
Fla. Bar. No. 351318
LYNN MAYNARD GOLLIN, ESQ.
Fla Bar No. 621668
CHS Electronics, Inc.,
By: ____________________________________
Acting Chief Financial Officer
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CASE NO: 00-12731-BKC-RAM
PLAN OF REORGANIZATION
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INTRODUCTION......................................................................................................5
ARTICLE I - DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION
OF TIME.........................................................................................6
A. Scope of Definitions
B. Defined Terms
ARTICLE II - TREATMENT OF ADMINISTRATIVE AND PRIORITY
TAX CLAIMS ....................................................................................24
A. Administrative Claims
B. Treatment of Administrative Claims
2.1 - Time For Filing Administrative Claims and Professional Fee Claims
2.2 - Allowance of Administrative Claims
2.3 - Payment of Allowed Administrative Claims
2.4 - Administrative Claims - Substantial Contribution Compensation and
Expenses Bar Date
2.5 - Administrative Claims - Stay Bonus Claims
2.6 - Administrative Claims - Break-Up Fee or Topping Fee
ARTICLE III - CLASSIFICATION OF CLAIMS AND INTERESTS ........................................................26
ARTICLE IV - DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
IMPAIRED AND NOT IMPAIRED BY THE PLAN..........................................................27
ARTICLE V - TREATMENT OF CLAIMS AND INTERESTS .............................................................27
5.1 - Class 1-Priority Tax Claims
5.2 - Class 2-Other Priority Claims
5.3 - Class 3-Unsecured Claims Other than Guarantee Claims
5.4 - Class 4-Guarantee Claims
5.5 - Class 5-Secured Claims
5.6 - Class 6-Administrative Convenience Unsecured Claims
5.7 - Class 7-Subordinated Securities Claims
5.8 - Class 8-Old Common Stock Interestholders
ARTICLE VI - EXECUTORY CONTRACTS AND UNEXPIRED LEASES.......................................................32
A. Assumption and Rejection of Designated Executory Contracts and Unexpired
Leases
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6.1 - Procedure
6.2 - Cure Payments
B. Claims for Rejection Damages
ARTICLE VII - PROCEDURE FOR RESOLVING AND MAKING
DISTRIBUTIONS IN RESPECT OF DISPUTED CLAIMS
CONTINGENT OR UNLIQUIDATED CLAIMS..............................................................34
7.1 - Objections to Claims
7.2 - No Distributions Pending Allowance
7.3 - Disputed Claims Reserve
7.4 - Distributions in Respect of Disputed Claims
7.5 - Reservation of Right
7.6 - Determination of Contingent or Unliquidated Claims
ARTICLE VIII- MEANS OF IMPLEMENTING THE PLAN.................................................................36
8.1 - Blank
8.2 - Sale of Assets
8.3 - Funding of the Plan
8.4 - Record Date
8.5 - Liquidating Trust Interests
8.6 - Disposition of the Excepted Assets
8.7 - Establishing the Liquidating Trust
8.8 - Cancellation of Old Common Stock
8.9 - Preservation of Causes of Action
8.10 - Effectuating Documents; Further Transactions
8.11 - Transfer of Excepted Assets
ARTICLE IX - EFFECT OF THE PLAN ON CLAIMS AND INTERESTS.....................................................40
9.1 - Discharge
9.2 - No Waiver of Causes of Actions
9.3 - Satisfaction of Subordination Rights
9.4 - Blank
9.5 - Release by Holders of Claims and Interests
9.6 - Blank
9.7 - Compromise and Settlements
ARTICLE X - DISTRIBUTIONS UNDER THE PLAN...................................................................42
10.1- Disbursing Agent
10.2- Surrender of Claims
10.3- Withholding Taxes
10.4- Setoffs and Recoupments
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10.5- Undeliverable Distributions
10.6- DeMinimis Distributions
ARTICLE XI - ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE CLASSES
OF CLAIMS OR EQUITY INTEREST HOLDERS AND
PROVISIONS TO INVOKE CRAM-DOWN PROVISION.......................................................44
11.1- Voting Classes
11.2- Acceptance by Impaired Classes
11.3- Non-Consensual Confirmation (Cramdown)
11.4- Presumed Acceptances of Unimpaired Classes
11.5- Presumed Rejection by Certain Impaired Classes
ARTICLE XII - PROVISIONS FOR RETENTION OF JURISDICTION FOR
SUPERVISION OF THE PLAN........................................................................45
ARTICLE XIII- NOTICES AND MISCELLANEOUS PROVISIONS...........................................................47
13.1- Notices
13.2- Binding Effect of the Plan
13.3- Amendments/Modification of Plan
13.4- Governing Law
13.5- Headings
13.6- Successors and Assigns
13.7- Time
13.8- Severability
13.9- Revocation
13.10- Plan Controls
ARTICLE XIV - THE LIQUIDATING TRUST..........................................................................50
ARTICLE XV - CONCLUSION - CONDITIONS PRECEDENT..............................................................51
15.1- Conditions to Confirmation
15.2- Conditions to Effective Date
15.3- Waiver of Conditions to Confirmation or Consummation
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CASE NO: 00-12731-BKC-RAM
INTRODUCTION
CHS Electronics, Inc. ("CHSE" or "Debtor"), as debtor and
debtor-in-possession in the above-captioned chapter 11 reorganization case,
hereby proposes the following amended liquidating plan of reorganization for the
resolution of the Debtor's outstanding creditor claims and equity interests.
Reference is made to the Disclosure Statement for a summary and analysis of the
Plan, results of operations, projections for future operations, and risk
factors.
This Plan provides for the liquidation and the distribution of the
Debtor's Assets to Creditors in two ways. First, the Plan provides for the sale
of the Debtor's European Assets to a non-affiliated entity, Europa ITApS, a
Danish corporation, pursuant to the Stock Purchase Agreement, free and clear of
all liens, claims, encumbrances and interests, pursuant to the Letter Agreement
entered into by CHSE, Europa, the Holders, and the Stock Purchase Agreement.
Subject to Court approval, some or all of the European Assets may be sold to an
entity other than Europa. Second, the Excepted Assets shall be transferred to
the Liquidating Trust and the proceeds from the liquidation of the Excepted
Assets shall be distributed to Creditors.
The European Assets represent a very substantial portion of the
Debtor's total assets. In exchange for the transfer of the Debtor's European
Assets, the Debtor will receive 20% of the fully diluted Europa Common Stock,
Europa Thirty Month Notes and Europa Preferred Stock. All the foregoing
consideration transferred by Europa in exchange for the European Assets shall be
distributed to Creditors under this Plan. If another entity is approved by the
Court to purchase all or some of the European Assets, the consideration of such
sale will be distributed to Creditors under the Plan.
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This Plan provides for distributions only to Claimholders (other than
the holders of Subordinated Securities Claims) who hold Claims as of the Record
Date. There will not be a distribution to holders of Subordinated Securities
Claims or Interestholders and the latter's Interests shall be cancelled. Under
Section 1125(b) of the Bankruptcy Code, a vote to accept or reject the Plan
cannot be solicited from a Claimholder or Interestholder until such time as the
Disclosure Statement has been approved by the Bankruptcy Court and distributed
to Claimholders or Interestholders. ALL CLAIMHOLDERS AND INTERESTHOLDERS ARE
ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY
BEFORE VOTING TO ACCEPT OR REJECT THIS PLAN.
The Debtor expressly reserves its right to alter, amend or modify this
Plan, one or more times, before its substantial consummation, subject to the
restrictions on modifications set forth in Section 1127 of the Bankruptcy Code
and Bankruptcy Rule 3019 and as otherwise set forth in the Plan.
ARTICLE I
DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION OF TIME
B. SCOPE OF DEFINITIONS: All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in Article I of this Plan. Any term
used in this Plan that is not defined herein, but is defined in the Bankruptcy
Code or the Bankruptcy Rules, shall have the meaning ascribed to that term in
the Bankruptcy Code or the Bankruptcy Rules. Whenever the context requires, such
terms shall include the singular as well as the plural number.
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C. DEFINED TERMS: The capitalized terms used in the Plan shall have the meanings
set forth in the numbered paragraphs of this Article.
1.01 "Administrative Claim" means a Claim for payment of costs or
expenses of the Case as specified in sections 503(b) and 507(a)(1) of the Code,
including without limitation: (i) the actual, necessary costs and expenses of
preserving the Debtor's estate and operating the businesses of the Debtor,
incurred and paid in the ordinary course of business by the Debtor after the
Petition Date; (ii) Claims under sections 330(a), 331 or 503 of the Code for
Professional Fee Claims, except, according to information provided by the
Debtor's management, those fees previously awarded and paid to professionals
retained in the Case; (iii) any Post-Petition taxes under Section 503(b)(1)(B)
and (C); (iv) fees and charges assessed against the Debtor's estate pursuant to
section 1930 of Title 28 of the United States Code ("United States Trustee
Fees"); the Indenture Trustee Fee and the reasonable fees and expenses described
in Article II of the Plan.
1.02 "Administrative Convenience Unsecured Claim" means a General
Unsecured Claim in a face amount of $1,000 or less and any Unsecured Claim
against the Debtor in excess of $1,000 that is reduced to $1,000 by election of
the holder thereof, as provided in writing on the Ballot; provided that for
purposes hereof, all such Unsecured Claims held by an entity or by any entity
and any Affiliate of an entity shall be aggregated, consolidated and treated as
one such Unsecured Claim; and provided further that, for purposes hereof, if all
or any part of an Unsecured Claim was or is assigned, the Unsecured Claims held
by all assignees of Unsecured Claims, shall be treated as one such Unsecured
Claim.
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1.03 "Affiliate"shall have the same meaning as set forth in Section
(101)(2) of the Bankruptcy Code.
1.04 "Allowed Administrative Convenience Unsecured Claim" shall mean an
Administrative Convenience Unsecured Claim to the extent it is an Allowed Claim.
1.05 "Allowed" when used with respect to a Claim (other than an
Administrative Claim, a Disputed Claim or a Claim which is not Allowed) shall
mean a Claim or that portion of a Claim: (i) which has been scheduled (other
than Claims set forth in the Debtor's Schedules as contingent, unliquidated or
disputed) or timely filed with the Court pursuant to Bankruptcy Rule 3003(e) as
to which no objection to the allowance thereof has been interposed by the Debtor
or Liquidating Trust or within any applicable period or limitation fixed by the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court; (ii) as to which
any objection to its allowance has been settled, waived or withdrawn or has been
denied by a Final Order; (iii) that has been allowed by a Final Order; (iv) as
to which the liability of the Debtor has been determined by a court of competent
jurisdiction other than the Bankruptcy Court; or (iv) that is specifically
designated in a liquidated amount in the Plan as an Allowed Claim. Unless
otherwise specified in the Plan, Allowed Claim shall not include interest on the
amount of such Claim from and after the Petition Date, but shall include accrued
but unpaid interest up to the Petition Date. "Allowed" when used with respect to
an Interest to the extent such Interest is listed on the transfer ledger
maintained by the Debtor as of the Confirmation Date, shall be an Interest that
is "Allowed" pursuant to the procedures set forth in Article V of the Plan.
1.06 "Allowed Administrative Claim" shall mean any Administrative Claim
that is Allowed pursuant to the procedure set forth in Article II of the Plan.
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1.07 "Allowed [Class Designation] Claim or Allowed [Class Designation]
Interest" shall mean an Allowed Claim or Interest in the Class specified.
1.08 "Allowed Interest" shall mean an Interest to the extent it is
allowed Interest.
1.09 "Allowed Other Priority Claims" shall mean an Other Priority Claim
to the extent it is an Allowed Claim.
1.10 "Allowed Secured Claim" shall mean an Allowed Claim secured by a
valid, perfected and enforceable lien, security interest or other charge against
or interest in Property in which the Debtor has an interest, or which is subject
to set-off under Section 553 of the Code, to the extent of the value (determined
in accordance with Section 506(a) of the Bankruptcy Code) of the interest of the
holder of such Allowed Claim in the Debtor's interest in such Property or to the
extent of the amount subject to such set-off, as the case may be.
1.11 "Allowed Unsecured Claim" shall mean an Unsecured Claim to the
extent it is an Allowed Claim, including all accrued but unpaid interest up to
the Petition Date.
1.12 "Assets" means all real and personal, tangible and intangible
property of the Debtor presently existing, or hereafter acquired, or created at
any time, wherever located, and by whomever held, together with the products and
proceeds thereof (including without limitation insurance proceeds).
1.13 "Avoidance Claims" means Causes of Action against Persons arising
under sections 502, 510, 544, 545, 547 through 551 and 553 of the Bankruptcy
Code, or under related state or federal statutes and common law, including
fraudulent transfer laws, whether or not litigation is commenced to prosecute
such Avoidance Claims.
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1.14 "Ballot" shall mean the form or forms that will be distributed
with the Disclosure Statement to solicit acceptances of the Plan to holders of
Claims with Claims in Classes that are impaired under the Plan and entitled to
vote on the Plan.
1.15 "Ballot Date" shall mean the date set by the Court by which all
Ballots must be received.
1.16 "Bankruptcy Code" means Title 11 of the United States Code, as in
effect from time to time, as applicable to the Chapter 11 Case.
1.17 "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended from time to time as applicable to the Chapter 11 Case,
including the Local Rules of the Court.
1.18 "Break-Up Event" shall mean the condition for payment of the
Break-Up Fee to Europa pursuant to the Court's Order Authorizing Debtor to Pay
Break-Up Fee or Topping Fee to Europa.
1.19 "Break-Up Fee" shall mean the Break-Up Fee authorized to be paid
to Europa under the Court's Order Authorizing the Debtor to Pay Break-Up Fee or
Topping Fee to Europa. Payment of the Break-Up Fee is conditioned upon the entry
of an order by the Court authorizing and awarding payment of the amount of the
Break-Up Fee, after appropriate notice to parties in interest.
1.20 "Business Day" shall mean a day other than a Saturday or Sunday or
a "legal holiday" as that term is defined in Bankruptcy Rule 9006(a).
1.21 "Case" or "Chapter 11 Case" shall mean the CHS Electronics, Inc.,
Chapter 11 bankruptcy proceeding.
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1.22 "Cash" shall mean Cash or cash equivalents, including, but not
limited to, checks, bank deposits or other similar items.
1.23 "Causes of Action" means any and all actions, causes of action,
suits, accounts, controversies, agreements, promises, rights to legal remedies,
rights to equitable remedies, rights to payment and claims, whether known,
unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured and whether asserted or assertable directly or derivatively, in law,
equity or otherwise, which are or become property of the Estate pursuant to
Section 541 or Section 542 of the Bankruptcy Code or which become property of
the Liquidating Trust.
1.24 "CHSE" shall mean CHS Electronics, Inc., Debtor.
1.25 "Claim" means a claim against the Debtor, whether or not asserted,
as defined in Section 101(5) of the Bankruptcy Code, including without
limitation, any right to payment from the Debtor, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, equitable, matured,
unmatured, contested, uncontested, legal, secured, or unsecured, or any right to
an equitable remedy for breach of performance if such breach gives right of
payment from the Debtor, whether such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, contested, secured, or
unsecured.
1.26 "Claims Bar Date" shall mean May 31, 2000, the deadline set by the
Court for filing any proofs of Claim that were required to be filed.
1.27 "Class" shall mean a group of Claims or Interests as classified
under Article III of the Plan.
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1.28 "Collateral" shall mean any Property of the Debtor subject (i) to
a valid and enforceable lien or (ii) to the extent subject to set-off under
Section 553 of the Bankruptcy Code.
1.29 "Confirmation Date" shall mean the date upon which the
Confirmation Order is entered by the Court.
1.30 "Confirmation Hearing" shall mean the hearing held by the Court to
consider confirmation of the Plan pursuant to Sections 1128 and 1129 of the
Bankruptcy Code and the applicable Bankruptcy Rule(s), as such hearing is
continued from time to time.
1.31 "Confirmation Order" shall mean the order entered by the Court
confirming the Plan.
1.32 "Court" shall mean the United States Bankruptcy Court for the
Southern District of Florida, Miami Division, in which Court the Case is
pending, and any Court having competent jurisdiction to hear appeals or
certiorari proceedings therefrom.
1.33 "Creditor" shall have the same meaning as set forth in Section
101(10) of the Bankruptcy Code.
1.34 "Creditors Committees" means the Official Committee of Creditors
Holding Unsecured Claims and the Official Committee of Noteholders appointed in
this case.
1.35 "Cure Payments" shall mean a payment related to curing defaults in
connection with assuming executory contracts and unexpired leases under Sections
365(b)(1)(A) and 365(b)(1)(B) of the Bankruptcy Code in accordance with the
procedures set forth in Article VI of the Plan.
1.36 "D&O Insurance" means insurance coverage for CHSE and its
officers, directors, and underwriters pursuant to that certain Directors and
Officers Corporate Liability Insurance Policies Number P-SF000207 and related
endorsements issued by Royal Insurance Company and that certain
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Directors and Officers Corporate Liability Insurance Policy, Number
DOC2799771-01 and related endorsement issued by Zurich Insurance Company any
proceeds thereof.
1.37 "Debentures" means the currently outstanding $40.5 million
aggregate principal amount of Floating Rate Convertible Debentures due 2003
issued by CHSE.
1.38 "Debentureholder" shall mean a holder of Debentures.
1.39 "Debt" shall have the same meaning as set forth in Section 101(12)
of the Bankruptcy Code.
1.40 "Debt Package" means the Europa Thirty Month Notes.
1.41 "Deficiency Claim" shall mean a Claim equal to the amount, if any,
by which the total Allowed Claim of any Creditor exceeds the portion of such
Claim that is an Allowed Secured Claim; provided, however, if the Class of which
such Claim is a part makes the election provided for by Section 1111(b)(2) of
the Bankruptcy Code, there shall be no Deficiency Claim in respect of such
Claim.
1.42 "Disbursing Agent" shall mean the party designated by the Debtor,
in its sole discretion, to serve as a disbursing agent under Article X of the
Plan.
1.43 "Disclosure Statement" shall mean the Disclosure Statement filed
by CHSE on May 12, 2000 in Support of Amended Liquidating Plan of
Reorganization, and all exhibits annexed thereto or referenced therein, required
pursuant to Section 1125 of the Bankruptcy Code with respect to the Plan as may
be amended, modified or supplemented from time to time.
1.44 "Disputed Claim" shall have the meaning contemplated by the
Bankruptcy Code and Bankruptcy Rules, and include a Claim (or portion thereof)
for which: (a) a proof of Claim is deemed
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filed under applicable law or order of the Court; (b) an objection was or is
deemed to be timely filed by the Debtor or other party, and (c) such objection
is not withdrawn or resolved by stipulation with the Debtor.
1.45 "Disputed Claims Reserve" shall mean the reserve created pursuant
to Article VII of the Plan.
1.46 "Distribution" shall mean the Cash, Europa Thirty Month Notes,
Europa Preferred Stock and/or Europa Common Stock to be paid or distributed
under the Plan to the holders of Allowed Claims.
1.47 "Distribution Date" means with respect to a Claim, the Business
Day that is as soon as practicable on or after the later of (a) the Effective
Date or (b) the Business Day upon which the Claim becomes an Allowed Claim or an
Allowed Administrative Claim; and for other purposes the date the initial
Distributions are made to holders of Allowed Claims under the Plan.
1.48 "Effective Date" shall be the later of thirty (30) days after the
entry of the Confirmation Order or the date on which the Estate obtains
unconditional rights in the Europa Thirty Month Notes, Europa Preferred Stock
and Europa Common Stock.
1.49 "Equity Package" shall mean the Europa Preferred Stock and 20% of
the fully diluted Europa Common Stock.
1.50 "Estate" shall have the same meaning as set forth in Section 541
of the Bankruptcy Code.
1.51 "Excepted Assets" shall mean all Assets of the Debtor, other than
the European Assets sold to Europa or to any other entity whose purchase or
transfer of some or all of the
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European Assets is approved by the Court. Excepted Assets include the D&O
Insurance, the Retained Actions, and any of the European Assets not sold or
transferred to Europa or any other entity.
1.52 "Europa" means Europa ITApS, a Danish corporation that is a
wholly-owned subsidiary of Plectrum Holdings, Limited, a Gibraltar company
controlled by Mark Keough, the former Chief Operating Officer of CHSE. As of the
Petition Date, neither CHSE nor any Affiliate of CHSE has an ownership interest
in Plectrum Holdings, Limited or Europa. The form of the organizational
documents of Europa are an Exhibit to the Disclosure Statement.
1.53 "Europa Common Stock" means the fully diluted common stock of
Europa.
1.54 "Europa Thirty Month Notes" means $22.5 million in aggregate
principal amount of promissory notes issued by Europa pursuant to the New
Indenture and delivered to the Debtor pursuant to the Plan in exchange for the
European Assets. The issue date of the Thirty Month Notes shall be the same date
as the Effective Date, bear interest at the rate 10% per annum and be payable in
five equal, semi-annual installments of principal together with accrued and
owing interest, the first installment being paid on the sixth month anniversary
of the issue date. The Europa Thirty Month Notes shall be subject to the
Registration Rights Agreement. The Europa Thirty Month Notes will be callable at
any time at par plus accrued interest. The form of the Note Indenture will be
attached as an Exhibit to the Disclosure Statement.
1.55 "Europa Preferred Stock" means $45 million in aggregate par value
of redeemable, convertible, preferred stock issued by Europa on the Effective
Date and delivered to the Debtor pursuant to the Plan in exchange for the
European Assets. The terms and designation of the Europa
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Preferred Stock shall be in the form attached as an Exhibit to the Disclosure
Statement. The Europa Preferred Stock shall have a 10% annual dividend rate if
paid in Cash; provided, Europa may elect to pay dividends in kind rather than in
Cash and if so, dividends in kind shall be at the rate of 12% for the first two
years after issuance, 13% in year three and 14% in year four. Holders of Europa
Preferred Stock may convert each $1 million par value of Europa Preferred Stock
to 1% of the fully diluted Common Stock of Europa (and increments thereof) on
and after the fourth anniversary date from issuance of Europa Preferred Stock
pursuant to the Registration Rights Agreement. Holders of Europa Preferred Stock
may demand registration of their shares of Europa Preferred Stock on or after
eighteen months from the date of issuance of the stock. The Europa Preferred
Stock shall be redeemable at any time at par plus accrued interest.
1.56 "European Assets" means the capital stock of certain subsidiaries
of CHSE and certain other rights of CHSE listed on Exhibit B to the Letter
Agreement, and described in the Stock Purchase Agreement.
1.57 "Face Amount" means (a) when used in reference to a Disputed Claim
or a Claim which is not an Allowed Claim, the full stated amount claimed by the
holder of a Claim in any proof of Claim timely filed with the Court or otherwise
deemed timely filed by any Final Order of the Court or other applicable
bankruptcy law, and (b) when used in reference to an Allowed Claim, the allowed
amount of such Claim.
1.58 "Federal Securities Litigation Claims" shall mean a claim asserted
by a plaintiff in the Federal Securities Suit.
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1.59 "Federal Securities Suit" means the lawsuit captioned, IN RE CHS
ELECTRONICS, INC. SECURITIES LITIGATION pending as Case No.
99-8186-Civ-Gold/Simonton, in the United States District Court for the Southern
District of Florida, Miami Division.
1.60 "Fee Application" shall mean an application under Section 330(a),
331 or 503 of the Bankruptcy Code for allowance of any Professional Fee Claim.
1.61 "Final Order" shall mean an order or judgment and with respect to
an order or judgment of the Bankruptcy Court that the order or judgment is
appealable of right to the United States District Court for the Southern
District of Florida pursuant to 28 U.S.C. ss. 158(a)(1), whether or not an
appeal can be timely taken, is taken, or is pending, unless the order is stayed
pending appeal, and whether or not a timely motion is filed under Bankruptcy
Rules 7052(b) or 9023, unless the order or judgment is stayed pending
disposition of such motion; and shall mean with respect to an order or judgment
of the United States District Court for the Southern District of Florida in
respect to a matter as to which the reference has been withdrawn pursuant to 28
U.S.C. ss. 157(d) that the order is appealable of right to the United States
Court of Appeals for the Eleventh Circuit pursuant to 28 U.S.C. ss. 158(d) or 28
U.S.C. ss. 1291, whether or not an appeal can be timely taken, is taken, or is
pending, unless the order or judgment is stayed pending appeal, and whether or
not a timely motion is filed under Bankruptcy Rules 7052(b) or 9023 or Rules 50,
52, 59 or 60 of the Federal Rules of Civil Procedure, unless the order or
judgment is stayed pending disposition of such motion.
1.62 "Fixed Rate Notes" means the $200 million aggregate principal
amount of 9.875 percent fixed rate Senior Notes due 2005 issued by CHS and
outstanding under the Indenture.
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1.63 "Guarantee Claim" shall mean claims arising from the Debtor's
guarantee of the obligations of its subsidiaries to creditors for loans advanced
and/or goods and services supplied to the subsidiaries.
1.64 "Holder" shall have the meaning set forth in the attached Letter
Agreement.
1.65 "Holders" shall refer to all Noteholders, Debentureholders and
holders of Claims, including Guarantee Claims, who are parties to the Letter
Agreement.
1.66 "Indenture" shall mean the Indenture, dated as of April 9, 1998,
by and between, among others, CHS Electronics, Inc. and The Chase Manhattan
Bank, as Indenture Trustee, pursuant to which the Fixed Rate Notes were issued
and are outstanding.
1.67 "Indenture Trustee" shall mean The Chase Manhattan Bank in its
capacity as indenture trustee under the Indenture, or any successor indenture
trustee appointed in accordance with the terms of the Indenture.
1.68 "Insider" shall have the meaning as defined in Section 101(31) of
the Bankruptcy Code.
1.69 "Intercompany Claim" shall mean an Unsecured Claim or a Guarantee
Claim of an Affiliate against the Debtor or by the Debtor against an Affiliate.
1.70 "Interest" shall mean any right of a holder of Old Common Stock of
CHSE as of the Confirmation Date and arising from such holder's status as the
holder of an "equity security" within the meaning of Section 101(16) of the
Bankruptcy Code.
1.71 "Interestholder" shall mean the beneficial holders of Old Common
Stock of CHSE as of the Confirmation Date.
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1.72 "Letter Agreement" means the Letter Agreement between CHSE,
Europa, and certain Noteholders, Debentureholders, and Holders of Claims, a copy
being attached hereto as Exhibit A.
1.73 "Lien" shall mean any mortgage, lien, charge, security interest,
encumbrance, or other security device of any kind affecting any Asset or
Property of the Debtor.
1.74 "Liquidating Trust" shall mean the Liquidating Trust Agreement
entered into pursuant to Article XIV of the Plan to retain and administer the
Excepted Assets in the form attached hereto as EXHIBIT "B". The Liquidating
Trust shall be the representative of the Estate appointed to retain and enforce
any claim or interest of the Estate, including the Retained Actions.
1.75 "Liquidating Trustee" shall mean Burton Emmer, the person
designated by the Debtor to serve as Liquidating Trustee of the Liquidating
Trust to manage and administer the Liquidating Trust.
1.76 "New Indenture" shall mean the Indenture governing the Europa
Thirty Month Notes, in the form attached as an Exhibit to the Disclosure
Statement.
1.77 "Noteholders" means the holders of the Fixed Rate Notes.
1.78 "Objection to Claims Deadline" shall mean the date by which the
Debtor or other party in interest shall file objections to Disputed Claims,
which date shall be on or before three (3) months after the Effective Date,
unless otherwise extended by Order of the Court.
1.79 "Old Common Stock" shall mean all of the shares of the common
stock of CHSE, including any warrants and options to purchases such shares,
issued and outstanding as of the Confirmation Date.
1.80 "Order" shall mean a determination or judgment by the Court.
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1.81 "Other Priority Claim" means a Claim entitled to priority pursuant
to Section 507(a) of the Bankruptcy Code other than a Priority Tax Claim or an
Administrative Claim.
1.82 "Petition Date" shall mean April 4, 2000, the date on which the
Debtor filed its voluntary petition for relief under Chapter 11 of the
Bankruptcy Code.
1.83 "Plan" shall mean this Amended Liquidating Plan of Reorganization,
and all exhibits annexed hereto or referenced herein, as may be amended,
modified or supplemented from time to time.
1.84 "Post-Confirmation" shall mean the period commencing on the date
the Court enters the Confirmation Order and continuing thereafter until the case
is closed by the Order of the Court.
1.85 "Post-Petition" shall mean the period commencing on the Petition
Date and continuing thereafter until the Court enters the Confirmation Order.
1.86 "Pre-Petition" shall mean the period of time commencing prior to
the Petition Date and concluding on the Petition Date.
1.87 "Priority Claim" shall mean any Claim, if Allowed, entitled to
priority pursuant to Section 507(a) of the Bankruptcy Code, other than an
Administrative Claim.
1.88 "Priority Tax Claim" means a Claim entitled to priority pursuant
to Section 507(a)(8) of the Bankruptcy Code.
1.89 "Professional Fee Claim" shall mean a Claim under Section 330(a),
331 or 503 of the Bankruptcy Code for compensation for professional services
rendered and reimbursement of expenses in the Case.
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1.90 "Property" shall have the same meaning ascribed to it under
Section 541 of the Bankruptcy Code.
1.91 "Pro Rata" shall mean with reference to any Distribution on
account of any Allowed Claim or Allowed Interest in any Class, a Distribution
equal in amount to the ratio (expressed as a percentage) that the amount of such
Allowed Claim or Allowed Interest bears to the aggregate amount of all Allowed
and Disputed Claims or Interests of the same Class as determined by the
Disbursing Agent, Liquidating Trustee or the Court.
1.92 "Registration Rights Agreement" shall be the agreement of Europa
to register the Europa Thirty Month Notes and/or the Europa Preferred Stock
under the Securities Act of 1933, as amended, on the terms and conditions set
forth therein, in the form attached as an Exhibit to the Disclosure Statement.
1.93 "Reinstated" or "Reinstatement" means (a) leaving unaltered the
legal, equitable and contractual rights to which a Claim entitles the holder of
the Claim so as to leave such Claim unimpaired in accordance with Section 1124
of the Bankruptcy Code, or (b) notwithstanding any contractual provision or
applicable law that entitles the holder of the Claim to demand or receive
accelerated payment of such Claim after the occurrence of a default (i) curing
any such default that occurred before or after the Petition Date, other than a
default of a kind specified in Section 365(b)(2) of the Bankruptcy Code; (ii)
reinstating the maturity of such Claim as such maturity existed before such
default; (iii) compensating the holder of the Claim for any damages incurred as
a result of any reasonable reliance by such holder of the Claim on such
contractual provision or such applicable law; and (iv) not otherwise altering
the legal, equitable or contractual rights to which such
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Claim entitles the holder of the Claim; provided, however, that any contractual
right that does not pertain to the payment when due of principal and interest on
the obligation on which such Claim is based, including, but not limited to,
financial covenant ratios, negative pledge covenants or restrictions on merger
or consolidation, and affirmative covenants regarding corporate existence.
prohibiting certain transactions or actions contemplated by the Plan, or
conditioning such transactions or actions on certain factors, shall not be
required to be reinstated in order to accomplish Reinstatement.
1.94 "Retained Actions" means (a) all claims, Causes of Action, suits
and proceedings, whether in law or in equity, whether known or unknown, which
the Debtor may hold against any entity, including, without limitation, any
Causes of Action brought Pre-Petition, and actions against any Persons for
failure to pay for products or services rendered by the Debtor, (b) all claims,
Causes of Action, suits and proceedings relating to strict enforcement of the
Debtor's intellectual property rights, (c) all claims or Causes of Action
seeking the recovery of the Debtor's accounts receivable or other receivables or
rights to payment created or arising in the ordinary course of the Debtor's
business, (d) the Avoidance Actions, and (e) any right of the Estate to seek
determination by the Court of any tax, any fine or penalty relating to a tax, or
any addition to a tax under Section 505 of the Bankruptcy Code. Attached as
EXHIBIT C to the Plan is a list and description of the Retained Actions.
1.95 "Schedule of Assumed Contracts" shall mean the schedule of
executory contracts and unexpired leases to be assumed by the Debtor pursuant to
Article VI of the Plan, which is included as Exhibit D to the Plan.
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1.96 "Schedules" shall mean the schedules of Assets and Liabilities and
the Statement of Financial Affairs filed by the Debtor with the Court, as
required by Section 521 of the Bankruptcy Code and the Bankruptcy Rules.
1.97 "Secured Claim" shall mean a Claim that is considered secured
under Section 506(a) of the Bankruptcy Code by Property of the Debtor's Estate.
1.98 "Selected Treatment" shall have the meaning set forth in Article V
of the Plan.
1.99 "Stay Bonus Claims" means the aggregate unpaid amount owing the
Debtor's employees pursuant to the terms of the Stay Bonus Order.
1.100 "Stay Bonus Order" means that certain Order Authorizing Employee
Stay Bonus Plan and Related Relief entered by the Bankruptcy Court.
1.101 "Stock Purchase Agreement" means the agreement between Europa and
the Debtor for sale of the European Assets. A copy of the Stock Purchase
Agreement is attached hereto as EXHIBIT E.
1.102 "Subordinated Securities Claims" means any Claim by an entity or
individual that asserts equitable or contractual rights of reimbursement,
contribution, rescission or indemnification arising from the purchase or sale,
or rescission thereof of Old Common Stock Interests and other Claims or Causes
of Actions by such entity or individual in connection therewith, including
Federal Securities Litigation Claims.
1.103 "Topping Event" shall mean the condition for payment of the
Topping Fee to Europa pursuant to the Court's Order Authorizing Debtor to Pay
Break-Up Fee or Topping Fee to Europa.
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1.104 "Topping Fee" shall mean the Topping Fee authorized to be paid to
Europa under the Court's Order Authorizing the Debtor to Pay Break-Up Fee or
Topping Fee to Europa. Payment of the Topping Fee is conditioned upon the entry
of an order by the Court authorizing and awarding payment of the amount of the
Topping Fee, after appropriate notice to parties in interest.
1.105 "United States Trustee" shall have the same meaning ascribed to
it in 28 U.S.C.ss.581 ET SEQ. and, as used in the Plan, refers to the Assistant
United States Trustee's Office located in the Southern District of Florida,
Miami, Florida.
1.106 "Unsecured Claim" shall mean any Claim against the Debtor that is
not an Administrative Claim, a Secured Claim or a Priority Claim, but including
without limitation, Claims arising from the rejection of an unexpired lease or
executory contract pursuant to Article VI of the Plan
ARTICLE II
TREATMENT OF ADMINISTRATIVE CLAIMS
A. ADMINISTRATIVE CLAIMS:
Pursuant to Section 1123(a)(1) of the Code, Administrative Claims are
not classified for purposes of voting or receiving Distributions under the Plan
and will be treated separately as set forth in Article II.
B. TREATMENT OF ADMINISTRATIVE CLAIMS
2.1 TIME FOR FILING ADMINISTRATIVE CLAIMS AND PROFESSIONAL FEE CLAIMS.
Except for the United States Trustee, all holders of Administrative Claims,
including but not limited to Professional Fee Claims must file an application
for approval of such Claim with the Court and serve same upon
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the Debtor and those parties specified in the Bankruptcy Rules prior to the
Confirmation Hearing. Professional Fee Claims must be in the form of a final Fee
Application and filed in accordance with the Bankruptcy Rules. Unless otherwise
Ordered by the Court, the failure to file a Claim as provided herein will result
in the Administrative Claim being forever barred and discharged.
2.2 ALLOWANCE OF ADMINISTRATIVE CLAIMS. An Administrative Claim other
than the United States Trustee's Claim will become an Allowed Administrative
Claim upon the entry of a Final Order allowing the Claim. The United States
Trustee's Claim shall be deemed to be Allowed Administrative Claims.
2.3 PAYMENT OF ALLOWED ADMINISTRATIVE CLAIMS. Ten days after the
Confirmation Date, the Debtor shall distribute to each holder of an Allowed
Administrative Claim, other than the Claim held by the United States Trustee,
the full amount of the Administrative Claim unless otherwise agreed to by the
parties, or ordered by the Court. The United States Trustee's Claim shall be
paid within thirty (30) days of the conclusion of each calendar year quarter
which passes after the Confirmation Date until the Case is closed by Order of
the Court.
2.4 ADMINISTRATIVE CLAIMS - SUBSTANTIAL CONTRIBUTION COMPENSATION AND
EXPENSES BAR DATE. Any Person or entity who requests compensation or expense
reimbursement for making a substantial contribution in this Case pursuant to
Sections 503(b)(3), (4), and(5) of the Bankruptcy Code must file an application
with the Clerk of the Bankruptcy Court, on or before a date that is ten (10)
days after the Confirmation Date (the "503 Deadline"), and serve such
application on counsel for the Debtor, and as otherwise required by the
Bankruptcy Court, the Bankruptcy Code, and the
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Bankruptcy Rules, on or before the 503 Deadline, or be forever barred from
seeking such compensation or expense reimbursement.
2.5 ADMINISTRATIVE CLAIMS - STAY BONUS CLAIMS. All amounts owed the
holders of Stay Bonus Claims shall be paid in accordance with the Stay Bonus
Order.
2.6 ADMINISTRATIVE CLAIMS - BREAK-UP FEE OR TOPPING FEE. On the
occurrence of a Break-Up Event, the Break-Up Fee payable to Europa shall be an
Allowed Administrative Claim, payable as provided in Article 2.3. On the
occurrence of a Topping Event, the Topping Fee payable to Europa shall be paid
as an Allowed Administrative Claim as provided under Article 2.3. The Topping
Fee shall be paid from the non-refundable deposit made by the successful bidder
for the European Assets.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 The Claims against the Debtor shall be classified as specified
below. Consistent with Section 1122 of the Bankruptcy Code, a Claim or Interest
is classified by the Debtor in the Plan in a particular Class only to the extent
the Claim or Interest is within the description of the Class and is classified
in a different Class to the extent the Claim or the Interest is within the
description of that different Class.
3.2 All Claims against the Debtor, and all Interests in the Debtor,
whether resulting in an Allowed Claim or not, shall be bound by the provisions
of the Plan and are hereby classified as follows:
CLASS 1 Consists of all Priority Tax Claims
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CLASS 2 Consists of all Other Priority Claims.
CLASS 3 Consists of all Unsecured Claims other than Guarantee Claims.
CLASS 4 Consists of all Guarantee Claims
CLASS 5 Consists of all Secured Claims.
CLASS 6 Consists of all Administrative Convenience Unsecured Claims
and those holders of Unsecured Claims which elect to be
treated as Administrative Convenience Unsecured Claims.
CLASS 7 Consists of all Subordinated Securities Claims.
CLASS 8 Consists of all Interestholders.
ARTICLE IV
DESIGNATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED AND NOT IMPAIRED BY THE PLAN
4.1 Unimpaired Classes of Claims: Classes 1, 2 and 5 are not impaired
under the Plan and are deemed to have voted in favor of and accepted the Plan.
4.2 The following Classes of Claims are impaired under the Plan:
Classes 3, 4, and 6.
4.3 Classes 7 and 8 do not receive distributions under the Plan and are
deemed to have voted to reject the Plan.
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
5.1 CLASS 1-PRIORITY TAX CLAIMS. With respect to each Allowed Priority
Tax Claim, at the sole option of the Debtor, a holder of an Allowed Priority Tax
Claim shall be entitled to receive on account of such Allowed Priority Tax
Claim, (a) equal Cash payments made on the last Business Day of every
three-month period following the Effective Date, over a period not exceeding six
(6)
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years after the assessment of the tax on which such Claim is based, totaling the
principal amount of such Claim plus simple interest on any outstanding balance
from the Effective Date calculated at the interest rate available on ninety (90)
day United States Treasury Securities on the Effective Date, (b) such other
treatment agreed to by the holder of an Allowed Priority Tax Claim and the
Debtor, provided such treatment is on more favorable terms to the Debtor, as the
case may be, than the treatment set forth in clause (a) hereof, or (c) payment
in full.
5.2 CLASS 2-OTHER PRIORITY CLAIMS. On the Effective Date, or as soon as
practicable thereafter, each holder of an Allowed Priority Claim shall receive,
in full satisfaction, settlement release, and discharge of and in exchange for
such Allowed Other Priority Claim, (a) Cash equal to the amount of such Allowed
Other Priority Claim, or (b) such other treatment as to which the Debtor and
such holder of an Allowed Other Priority Claim shall have agreed upon in
writing.
5.3 CLASS 3- UNSECURED CLAIMS OTHER THAN GUARANTEE CLAIMS. Class 3
shall consist of the holders of all general Unsecured Claims other than
Guarantee Claims. The holders of Class 3 Claims and Class 4 Claims shall be
treated together for the purpose of pro rating Distributions to these Classes
under the Plan. Each holder of a Class 3 or 4 Claim, must select on their Ballot
one of the following types of treatment to be afforded Class 3 and 4 Claims: a)
the Debt Package; b) the Equity Package; or c) a combination of the two where
the holder of a Class 3 or 4 Claim elects to subdivide the treatment of its
Claim between the Debt Package and the Equity Package (the "Selected
Treatment"). On the Effective Date, or as soon thereafter as practicable, each
holder of a Class 3 or 4 Claim will receive, in full satisfaction, settlement,
release and discharge of and in exchange for each and every Class 3 and 4 Claim,
its Pro Rata share of the securities issued pursuant
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to that holder of a Class 3 or 4 Claim's Selected Treatment of its Class 3 or 4
Claim such that the ratio of distribution under the Debt Package shall be no
less than $7.50 principal amount of Europa Thirty Month Notes per $100 of Class
3 and 4 Claims and that the ratio of Distribution under the Equity Package shall
be no less than $22.50 par value of Europa Preferred Stock per $100 of Class 3
and 4 Claims (the "Class 3 and 4 Distribution Ratio"). If the Selected Treatment
would result in a Distribution under the Debt Package or the Equity Package of
less than the Class 3 and 4 Distribution Ratio (the "Oversubscribed Package"),
the Distribution will be made to holders of a Class 3 or 4 Claim selecting such
Oversubscribed Package at the Class 3 and 4 Distribution Ratio on a Pro Rata
basis, and the Claims not satisfied in such Distribution shall be allocated to
the Debt Package or Equity Package, as the case may be, that is not the
Oversubscribed Package. Notwithstanding the foregoing, if total amount of
Allowed Class 3 and 4 Claims exceeds $500,000,000, the minimum distribution
ratios for the Debt Package and Equity Package set forth above shall be reduced
commensurate with the amount by which total Allowed Class 3 and 4 Claims exceed
$500,000,000. In addition, on the Effective Date, each holder of a Class 3 or 4
Claim shall receive its Pro Rata share of any Cash recoveries from or in
connection with the Excepted Assets prior to the Effective Date, and the
consideration paid the Debtor by any entity other than Europa who purchases some
or all of the European Assets. Each holder of a Class 3 Claim or Class 4 Claim
is hereby deemed to have received a beneficial interest in the Liquidating Trust
and be entitled to participate in subsequent Distributions therefrom.
Intercompany Claims, if any, between the corporations constituting the European
Assets and the Debtor shall be canceled and deemed null and void on the
Effective Date and receive no Distributions under the Plan. Intercompany Claims
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between the corporations constituting the European Assets and Affiliates of the
Debtor shall be cancelled and deemed null and void on the Effective Date and
receive no Distributions under the Plan, but only to the extent the Debtor
controls an Affiliate and such action is lawful under applicable law.
Distributions to holders of Fixed Rate Notes shall be made by the Disbursing
Agent to the Indenture Trustee for the benefit of holders of Fixed Rate Notes.
The Indenture Trustee shall in turn be authorized and directed to make
distributions under the Plan and the Indenture to holders of the Fixed Rate
Notes who hold such Fixed Rate Notes as of the Record Date.
5.4 CLASS 4-GUARANTEE CLAIMS. Class 4 shall consist of all unsecured
creditors holding Guarantee Claims. The treatment of Class 4 Claims is as set
forth in Section 5.3.
5.5 CLASS 5-SECURED CLAIMS. For all purposes, including voting,
confirmation and Distribution under the Plan, the amount of any Allowed Secured
Claim will be determined based on the value of the Collateral securing such
Claim to the extent that such Collateral is part of the Excepted Assets to be
transferred by the Debtor to the Liquidating Trust. Any Claim that is secured by
an unavoidable Lien on Property of the Debtor that is to be surrendered by the
Debtor prior to the Effective Date shall be treated as a Class 3 Claim, pursuant
to this Article, but shall be reduced by the extent of the value of the
surrendered Collateral securing such Claim, as determined by the Court pursuant
to Section 506(a) of the Code. With respect to Property that is transferred to
the Liquidating Trust that is Collateral subject to an Allowed Secured Claim,
the legal, equitable and contractual rights of the holder of the Allowed Secured
Claim shall be Reinstated on the Effective Date and all payments required to be
made to effectuate Reinstatement shall be made by the Liquidating Trust. The
Debtor's failure to object to such Secured Claim in the Case shall be without
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prejudice. The Liquidating Trustee's right to contest or otherwise defend
against such Claim, in the appropriate forum, when and if such Claim is sought
to be enforced by a holder of an Allowed Secured Claim is hereby reserved.
Notwithstanding Section 1141(c) or any other provision of the Bankruptcy Code,
all Pre-Petition Date Liens on Property of the Debtor held by or on behalf of
the holders of Allowed Secured Claims with respect to such Claims shall survive
the Effective Date and continue in accordance with the contractual terms of the
underlying agreements with such holders of an Allowed Secured Claim until, as to
each such holder of an Allowed Secured Claim, the Allowed Claims of such holders
of Secured Claims are paid in full.
5.6 CLASS 6-ADMINISTRATIVE CONVENIENCE UNSECURED CLAIMS. The holders of
Allowed Administrative Convenience Unsecured Claims will receive payment in Cash
on the Effective Date or as soon thereafter as is practicable in an amount equal
to 100% of the Face Amount of such Allowed amount of such Claims, not to exceed
$1,000. Any holder of an Allowed Unsecured Claim (or Claims) in excess of $1,000
that desires treatment of such Claim (or Claims) as an Allowed Administrative
Convenience Unsecured Claim shall make an irrevocable election to reduce its
Claim (or aggregate Claims) to $1,000 in writing on the Ballot and return such
Ballot on or prior to the Ballot Date. Any election made after the Ballot Date
shall not be binding on the Debtor unless the Ballot Date deadline is expressly
waived in writing by the Debtor for the express benefit of any holder.
5.7 CLASS 7-SUBORDINATED SECURITIES CLAIMS. The holders of Subordinated
Securities Claims, including Federal Securities Litigation Claims, shall receive
no Distribution on their Claims.
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5.8 CLASS 8-OLD COMMON STOCK INTERESTHOLDERS. Old Common Stock
Interestholders shall receive no Distributions under the Plan. All Old Common
Stock Interests shall be deemed to be canceled and extinguished on the Effective
Date.
ARTICLE VI
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. ASSUMPTION AND REJECTION OF DESIGNATED EXECUTORY CONTRACTS AND
UNEXPIRED LEASES.
6.1 PROCEDURE. On the Effective Date, the Debtor will assume and
transfer to the Liquidating Trust, the executory contracts and unexpired leases
listed on the Schedule of Assumed Contracts and Leases attached as Exhibit D to
the Plan. Each executory contract and unexpired lease of the Debtor (i) that has
not been assumed or rejected before the Confirmation Hearing with the approval
of the Court and (ii) that is not listed on the Schedule of Assumed Contracts
(as it may be amended or modified), shall be deemed rejected as of the date of
the Confirmation Order. The Court will determine whether to authorize the
foregoing assumptions and rejections at the Confirmation Hearing. The Debtor
reserves the right to amend the Schedule of Assumed Contracts either to (a)
delete certain executory contracts or unexpired leases listed therein and
provide for their rejection or (b) add additional executory contracts or
unexpired leases, thus providing for their assumption by the Debtor at any time
prior to the Confirmation Hearing or such later date as may be ordered by the
Court. At or prior to the conclusion of the Confirmation Hearing, the Debtor may
identify any other executory contracts or unexpired leases that it may assume or
reject effective as of the Effective Date. Any amendment to the Schedule of
Assumed Contracts at or prior to the conclusion of the Confirmation Hearing to
delete an executory contract or unexpired lease will be
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deemed and treated as a rejection of such contract or lease pursuant to Sections
365(g) and 502(g) of the Bankruptcy Code.
6.2 CURE PAYMENTS. Any Cure Payments that may be required shall be made
by the Debtor on the Effective Date, in Cash, to each entity listed on the
Schedule of Assumed Contracts and Leases unless proof of transfer of the Claim
has been filed in accordance with the applicable Bankruptcy Rule.
B. CLAIMS FOR REJECTION DAMAGES
6.3 Claims created by the rejection of any executory contract or
unexpired lease must be served on the Debtor and filed with the Court not later
than thirty (30) days after the entry of an Order authorizing such rejection, or
if rejection is made through the terms of this Plan, and not by specific motion,
then not later than thirty (30) days after the entry of the Confirmation Order.
Any Claims not filed within such time will be forever barred from assertion
against the Debtor's Estate or the Liquidating Trust. Unless otherwise ordered
by the Court, all such Claims arising from the rejection of an executory
contract or unexpired lease will be treated as Class 3 Claims.
ARTICLE VII
PROCEDURE FOR RESOLVING AND MAKING
DISTRIBUTIONS IN RESPECT OF DISPUTED, CONTINGENT OR
UNLIQUIDATED CLAIMS
7.1 OBJECTIONS TO CLAIMS. A Claim that is objected to prior to the
Confirmation Hearing shall not have the right to vote to accept or reject the
Plan until the objection is resolved, unless the Court enters an Order pursuant
to Bankruptcy Rule 3018(a) temporarily allowing such Claim for voting purposes
only.
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7.2 NO DISTRIBUTIONS PENDING ALLOWANCE. Notwithstanding any other
provision of the Plan, no payment or Distribution shall be made with respect to
any Claim to the extent it is a Disputed Claim unless and until such Disputed
Claim becomes an Allowed Claim.
7.3 DISPUTED CLAIMS RESERVE: The Disbursing Agent will withhold
Distributions to holders of Disputed Claims in the amount of the Disputed Claim,
and shall hold such withheld Distributions until, if ever, the Disputed Claims
become Allowed Claims or the Disputed Claims Reserve is transferred to the
Liquidating Trust (the "Disputed Claims Reserve"). On the Effective Date, the
Disputed Claims Reserve will be transferred to and administered by the
Liquidating Trust.
7.4 DISTRIBUTIONS IN RESPECT OF DISPUTED CLAIMS: Distributions to
holders of Disputed Claims to the extent that such Claims ultimately become
Allowed Claims, will be made from the Disputed Claims Reserve or the Liquidating
Trust, as the case may be, in accordance with the provisions of this Plan
governing the Class of Claims to which the respective Claim holder belongs.
7.5 RESERVATION OF RIGHT. All Claims, with the exception of Allowed
Claims, filed with the Court and all Claims listed in the Debtor's Schedules as
being disputed, contingent or unliquidated may be objected to, or the Schedules
amended to eliminate the Claim(s) and the Debtor reserves the right to do so.
7.6 DETERMINATION OF CONTINGENT OR UNLIQUIDATED CLAIMS. The holders of
contingent or unliquidated Claims, including those claimants designated
unliquidated and/or as contingent on the Schedules and any amendment to the
Schedules ("Contingent/Unliquidated Claims" or "Contingent/Unliquidated
Claimant"), shall submit to the following procedure for determining the amount
of contingent or unliquidated Claims:
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CASE NO: 00-12731-BKC-RAM
7.6.1 CONTINGENT/UNLIQUIDATED CLAIMANT/DEBTOR/COMMITTEE
MEETING. Each of the Contingent/Unliquidated Claimants and the Debtor will
designate a representative with the most knowledge regarding the respective
Contingent/Unliquidated Claimant's claim. Commencing on or before thirty days
after the Confirmation Date, each Contingent/Unliquidated Claimant's
representative will either meet with or participate in one or more conference
call(s) with the Debtor's representative and a representative of each of the
Creditors Committees to attempt to resolve any disputes as to the amount of any
such claims. At or prior to the first such meeting or conference call, each
Contingent/Unliquidated Claimant shall provide the Debtor's and each Creditors
Committee's representative with any and all documentary evidence supporting the
claimed liquidated amount of the Contingent/Unliquidated Claimant's claim. The
Debtor will submit any rebuttal documentation to each Contingent/Unliquidated
Claimant. Each Contingent/Unliquidated Claimant, the Debtor and the Creditors
Committees will attempt, in good faith, to resolve any dispute by unanimous
agreement.
7.6.2 MEDIATION. If any dispute regarding a
Contingent/Unliquidated Claim is not resolved within sixty days after the
Confirmation Date, the parties will designate a mediator to conduct mediation
conferences for those remaining Contingent/Unliquidated Claimants. On or before
sixty days after the Confirmation Date, representatives for each remaining
Contingent/Unliquidated Claimant, the Debtor and each Committee will be required
to attend one or more mediation conference(s) to attempt to resolve remaining
Contingent/Unliquidated Claims.
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7.6.3 CONFIDENTIALITY. The negotiations and mediation
procedures described in subsections 7.6.1 - 7.6.4 will be confidential and
treated as compromise and settlement negotiations for purposes of the applicable
rules of evidence.
7.6.4 EVIDENTIARY HEARING. If mediation fails to
resolve disputes with respect to Contingent/Unliquidated Claims, the Debtor
and/or the Creditors Committees will object to the remaining unresolved
Contingent/Unliquidated Claims by the Objection to Claims Deadline. The holders
of unresolved Contingent/Unliquidated Claims, and representatives of the Debtor,
and each of the Creditors Committees shall promptly seek a hearing date for a
judicial determination of the remaining unresolved Contingent/Unliquidated
Claims.
ARTICLE VIII
MEANS OF IMPLEMENTING THE PLAN
8.1 [This section intentionally left blank.]
8.2 SALE OF ASSETS. The Plan provides for the sale of the European
Assets, which is a very substantial portion of the Debtor's assets, pursuant to
the Stock Purchase Agreement. Under the Plan, the European Assets shall be sold
to Europa and in exchange for such sale, Europa shall transfer to Debtor 20% of
the fully diluted Europa Common Stock, the Europa Thirty Month Notes and the
Europa Preferred Stock. Subject to Court approval, some or all of the European
Assets may be sold to an entity other than Europa. All of the consideration paid
the Debtor for the sale of the European Assets, shall be distributed, Pro Rata,
to holders of Allowed Class 3 Claims and Allowed Class 4 Claims.
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8.3 FUNDING OF THE PLAN. It is contemplated that the Estate will have
sufficient Cash available, including Cash recoveries from the Excepted Assets
prior to the Effective Date, to fund all payments required to be made on the
Effective Date. The Distributions that the Plan provides shall be made by the
Disbursing Agent to holders of Allowed Claims on the Effective Date of the Plan
or as soon thereafter as is practicable. Europa shall transfer the Europa Thirty
Month Notes, Europa Preferred Stock and 20% of the fully diluted Europa Common
Stock to the Debtor no less than 10 days before the Effective Date of the Plan,
to be held in escrow until the Effective Date. On the Effective Date, the Debtor
shall convey, transfer, assign and deliver the European Assets or cause a
wholly-owned foreign entity or entities to convey, transfer, assign and deliver
the European Assets to Europa free and clear of all liens and interests and the
Europa Thirty Month Notes, Europa Preferred Stock and Europa Common Stock shall
be released from escrow and delivered to the Debtor free and clear of all liens
and interests, and be distributed by the Debtor pursuant to this Plan. To the
extent that any Cure Payments or Reinstatement payments are required to be paid
on the Effective Date, such payments shall be made in Cash on the Distribution
Date from Cash of the Debtor not subject to a lien or security interest.
8.4 RECORD DATE. Notwithstanding the provisions of Bankruptcy Rule
3018(a) (for purposes of voting), the record date for determining which holders
of Claims are entitled to receive Distributions under the Plan shall be the
Confirmation Date. As of the close of business on the Confirmation Date, the
Debtor shall be entitled to recognize and deal for all purposes of the Plan
(including Distributions) with only (1) those holders of Old Common Stock of
record stated as of such date and time in the transfer ledger (2) claimants
listed in the Schedules, as claims which are
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CASE NO: 00-12731-BKC-RAM
not contingent, disputed or unliquidated unless a notice of transfer of Claim
was filed, in accordance with Bankruptcy Rule 3001(e)(1) or 3001(e)(2) prior to
such date and (3) holders of Disputed Claims which become Allowed Claims
pursuant to an Order by the Court prior to the Confirmation Date.
8.5 LIQUIDATING TRUST INTERESTS. On the Effective Date, the holders of
Allowed Unsecured Claims, including Allowed Guarantee Claims, shall be deemed to
have received on a Pro Rata share basis, beneficial interests in the Liquidating
Trust and on such basis shall be entitled to participate in subsequent
Distributions, if any, from the Liquidating Trust.
8.6 DISPOSITION OF THE EXCEPTED ASSETS. On the Effective Date, the
Disputed Claims Reserve and the Excepted Assets, less any Cash Distributions,
shall be absolutely and irrevocably granted, assigned and transferred to the
Liquidating Trust.
8.7 ESTABLISHING THE LIQUIDATING TRUST. On the Effective Date, the
Liquidating Trust shall be established in accordance with Article XIV hereof,
and the issuance and allocation of the beneficial interests in the Liquidating
Trust shall be deemed to have been made as authorized herein.
8.8 CANCELLATION OF OLD COMMON STOCK. On the Effective Date, the Old
Common Stock Interests shall be cancelled, and all obligations evidenced thereby
discharged and fully satisfied by the confirmation of the Plan.
8.9 PRESERVATION OF CAUSES OF ACTION.
(a) In accordance with section 1123(b)(3) of the Bankruptcy Code
and except as otherwise provided in the Plan, Retained Actions shall be
preserved for the Estate and transferred to the Liquidating Trust. The Retained
Actions are retained and the Liquidating Trustee is hereby appointed the
representative of the Estate for the enforcement of the Retained Actions.
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CASE NO: 00-12731-BKC-RAM
(b) As the Estate's representative under Section 1123(b)(3)(B) of
the Bankruptcy Code, the Liquidating Trustee shall determine whether to enforce
or prosecute Retained Actions.
8.10 EFFECTUATING DOCUMENTS; FURTHER TRANSACTIONS. The Acting Chief
Financial Officer or executive officer of the Debtor, shall be authorized to
execute, deliver, file or record such contracts, instruments, releases,
indentures and other agreements or documents, and take such actions as may be
necessary or appropriate to effectuate and further evidence the terms and
conditions of the Plan.
8.11 TRANSFER OF EXCEPTED ASSETS. Prior to the Effective Date, the
Debtor shall continue to operate its business subject to all applicable
requirements of the Bankruptcy Code, the Bankruptcy Rules and where applicable,
Orders entered by the Court. Except as may be otherwise provided in the Plan or
the Confirmation Order, title to the Excepted Assets shall vest in the
Liquidating Trust
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CASE NO: 00-12731-BKC-RAM
free and clear of all Claims and Interests on the Effective Date. Thereafter,
the Debtor shall cease its business.
ARTICLE IX
EFFECT OF THE PLAN ON CLAIMS AND INTERESTS
9.1 DISCHARGE. As of the Effective Date, Europa shall hold all Assets
received pursuant to the Plan, free and clear of all liabilities, liens, Claims
and obligations or other claims of any nature of the Debtor's Estate, except the
liabilities, Claims, obligations or interests created or preserved by the Plan.
As of the Effective Date, the Liquidating Trust shall hold all Assets received
pursuant to the Plan, free and clear of all liabilities, Liens, Claims and
obligations or other claims of any nature of the Debtor's Estate, except the
liabilities, Claims, obligations or interests created or preserved by the Plan,
including any beneficial interest of a Claimant in the Liquidating Trust. All
legal or other proceedings and actions seeking to establish or enforce
liabilities, Claims, equity interests or obligations of any nature against the
Liquidating Trust and Europa for the Property received by them with respect to
debts and obligations, if any, of the Debtor's Estate arising before the
Effective Date shall be permanently stayed and enjoined, except as otherwise
specifically provided in the Plan.
9.2 NO WAIVER OF CAUSES OF ACTION. No provision of this Plan or the
acceptance of any Distributions hereunder shall compromise, settle or release
any Claims or Causes of Action belonging to the Debtor in respect of the Assets.
9.3 SATISFACTION OF SUBORDINATION RIGHTS. All Claims against the Debtor
and all rights and Claims between or among holders of Claims relating in any
manner whatsoever to Claims against the Debtor, based upon any claimed
subordination rights (if any), shall be deemed satisfied by the
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CASE NO: 00-12731-BKC-RAM
Distributions under the Plan to holders of Claims having such subordination
rights, and such subordination rights shall be deemed waived, released,
discharged and terminated as of the Effective Date. Distributions to the various
Classes of Claims hereunder shall not be subject to levy, garnishment,
attachment or like legal process by any holder of a Claim by reason of any
claimed subordination rights or otherwise, so that the holder of each Claim
shall have received the benefit of the Distributions in the manner set forth in
the Plan.
9.4 [Intentionally left blank.]
9.5 RELEASE BY HOLDERS OF CLAIMS AND INTERESTS. Each Person or entity
who votes to accept the Plan or that accepts any Distribution on its Claim made
pursuant to the Plan shall, upon receipt of the Distribution to be made to such
releasing party under the Plan be presumed conclusively to have absolutely,
unconditionally, irrevocably and forever, released and discharged: Europa (but
excluding any claims arising from or in connection with Europa's obligations
under the Europa Thirty Month Notes, Europa Preferred Stock and Europa Common
Stock distributed under the Plan), and all the corporations constituting the
European Assets, from any Claim, Interest, or Cause of Action existing as of the
Effective Date arising from, based on or relating to, in whole or in part, the
subject matter of, or the transaction or event giving rise to, the Claim or
Interest of such releasing party, and any act, omission, occurrence or event in
any manner related to such subject matter, transaction or obligation, including
any Claims made through the Debtor and against the European Assets under alter
ego Claims or Claims for piercing the corporate veil.
9.6 [Intentionally left blank.]
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CASE NO: 00-12731-BKC-RAM
9.7 COMPROMISES AND SETTLEMENTS. Pursuant to Bankruptcy Rule 9019(a),
the Debtor may compromise and settle various Claims (a) against it and (b) that
it has against other Persons. The Debtor expressly reserves the right (with
Bankruptcy Court approval, following appropriate notice and opportunity for a
hearing) to compromise and settle Claims against it and Claims that it may have
against other Persons up to and including the Effective Date. After the
Effective Date, such right shall be transferred to the Liquidating Trust.
ARTICLE X
DISTRIBUTIONS UNDER THE PLAN
10.1 DISBURSING AGENT. The Disbursing Agent shall make all
Distributions of Cash, Europa Common Stock, Europa Preferred Stock, and Europa
Thirty Month Notes pursuant to the Plan.
10.2 SURRENDER OF CLAIMS. The holder of any instrument evidencing a
Claim shall surrender such instrument to the Disbursing Agent and the Disbursing
Agent shall distribute or shall cause to be distributed to the holder thereof
the appropriate Cash Distribution, Europa Preferred Stock, Europa Common Stock,
and Europa Thirty Month Notes, as applicable hereunder. No Property to be
distributed hereunder shall be made to or on behalf of any such holders unless
and until (1) such instrument is received by the Disbursing Agent or (2) such
holder delivers to the Disbursing Agent an indemnity in form and substance
acceptable to the Disbursing Agent and the Indenture Trustee. Any holder that
fails to surrender such instrument or to deliver such indemnity to the
Disbursing Agent within one year after the Effective Date, shall be deemed to
have forfeited
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CASE NO: 00-12731-BKC-RAM
all rights and Claims and shall not participate in any Distributions of Property
under the Plan and all such Property shall be distributed to the other Holders
in such Holder's class.
10.3 WITHHOLDING TAXES. The Disbursing Agent shall be entitled to
deduct any federal, state or local withholding taxes from any payments under the
Plan. As a condition to making a Distribution under the Plan, the Disbursing
Agent shall be entitled to require that the holder of any Allowed Claim provide
such holder's taxpayer identification number and such other certification as may
be deemed necessary to comply with applicable tax reporting and withholding
laws.
10.4 SETOFFS AND RECOUPMENTS. By so instructing the Disbursing Agent,
the Debtor or Liquidating Trustee may, but shall not be required to, setoff
against or recoup from any Claim the payments to be made pursuant to the Plan in
respect of such Claim, any Claim of any nature whatsoever that the Debtor or
Liquidating Trust may have against the holder of a Claim, but neither the
failure to do so nor the Allowance of any Claim hereunder shall constitute a
waiver or release by the Debtor or Liquidating Trust of any such Claim or Causes
of Action the Debtor or Liquidating Trustee may have against such holder.
10.5 UNDELIVERABLE DISTRIBUTIONS. If the Disbursing Agent is unable to
make Distributions to the holder of an Allowed Claim under the Plan for lack of
a current address for the holder or otherwise, after the passage of 180 days
from the Effective Date and after any additional effort to locate the holder
that the Disbursing Agent or Liquidating Trustee has attempted, the payment or
Distribution to the holder of such Claim(s) shall be transferred to the Disputed
Claims Reserve to be distributed as set forth in Article V, or the Liquidating
Trust if the Disputed Claims Reserve is
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transferred to the Liquidating Trust, and the Claim shall be deemed satisfied to
the same extent as if payment or Distribution had been made to the holder of the
Claim.
10.6 DE MINIMIS DISTRIBUTIONS. No Cash Distribution of less than ten
dollars ($10) shall be made by the Disbursing Agent to any holder of an Allowed
Claim unless a request therefor is made in writing to the Disbursing Agent.
ARTICLE XI
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE CLASSES OF
CLAIMS OR EQUITY INTEREST HOLDERS AND
PROVISIONS TO INVOKE CRAM-DOWN PROVISION
11.1 VOTING CLASSES. Unless otherwise Ordered by the Court, each holder
of an Allowed Claim in Classes 3, 4, and 6 shall be entitled to vote to accept
or reject the Plan and shall be required to return its Ballot on or before the
Ballot Date. Any holder of a Disputed Claim shall not have the right to vote to
accept or reject the Plan until the Disputed Claim is resolved, unless the
holder of such Disputed Claim requests an Order from the Court pursuant to
applicable Bankruptcy Rules temporarily allowing such Disputed Claim for voting
purposes. Any Ballot received from any such holder of a Disputed Claim shall not
be considered in determining whether the Plan has been accepted by a particular
impaired Class of Claims.
11.2 ACCEPTANCE BY IMPAIRED CLASSES. An impaired Class of Claims shall
have accepted the Plan if (1) the holders (other than holders designated under
Section 1126(e) of the Bankruptcy Code) of at least two-thirds (2/3) in amount
of the Allowed Claims voting in such Class vote to accept the Plan; and (2) more
than one-half (1/2) in number of the holders (other than the holders designated
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under Section 1126(e) of the Code) of such Allowed Claims voting in such Class
vote to accept the Plan.
11.3 NON-CONSENSUAL CONFIRMATION (CRAMDOWN). The Debtor intends to
request that the Court confirm the Plan in accordance with Section 1129(b) of
the Code ("Cramdown provision") if any Class of Claims or Interests votes not to
accept or is deemed not to have accepted the Plan. For purposes of seeking
confirmation under the cramdown provision of the Code, should that alternative
means of confirmation prove to be necessary, the Debtor reserves the right to
modify or vary the terms of the Claims of the rejecting classes, so as to comply
with the requirements of 11 U.S.C. Section 1129(b).
11.4 PRESUMED ACCEPTANCES OF UNIMPAIRED CLASSES. Classes 1, 2 and 5 are
unimpaired under the Plan and, therefore, are conclusively presumed to have
accepted the Plan.
11.5 PRESUMED REJECTION BY CERTAIN IMPAIRED CLASSES. Classes 7 and 8 do
not receive a distribution under the Plan and are conclusively presumed to
reject the Plan.
ARTICLE XII
PROVISIONS FOR RETENTION OF
JURISDICTION FOR SUPERVISION OF THE PLAN
12.1 The Court shall retain jurisdiction after the Confirmation Date
over all matters arising or related to the Case and the Plan for the following
purposes:
12.1.1 to hear and determine objections to Claims filed
by the Debtor, the Liquidating Trustee or other parties in interest, including
objections to the classification, estimation, establishment of priority or
status of any Claim, and to allow or disallow any Disputed Claim, in whole or in
part, as contemplated in the Plan;
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CASE NO: 00-12731-BKC-RAM
12.1.2 to resolve disputes over the ownership of a Claim;
12.1.3 to enter and implement such Orders as may be
appropriate in the event the Confirmation Order is for any reason stayed,
revoked, modified or vacated, provided, however, this provision shall not form a
jurisdictional basis for staying, revoking, modifying or vacating the
Confirmation Order;
12.1.4 to hear and determine all claims or Causes of
Actions, including any causes of action under applicable Sections of the
Bankruptcy Code and contemplated under Article X, to recover the Debtor's Assets
and Property, whether title is presently held in the name of the Debtor or a
third party;
12.1.5 to determine any and all pending fee claims of
professionals.
12.1.6 to make such Orders as are necessary or appropriate
to carry out the provisions of the Plan;
12.1.7 to make such other Orders or give such directions as
may be appropriate under Section 1142 of the Bankruptcy Code;
12.1.8 to determine any and all pending adversary
proceedings, contested matters, applications and unresolved motions and all
actions commenced by the Debtor or the Liquidating Trustee;
12.1.9 to consider modifications of the Plan, if any, to
cure any defect or omission, or reconcile any inconsistency in any Order of the
Court, including, without limitation, the Confirmation Order;
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CASE NO: 00-12731-BKC-RAM
12.1.10 to hear and determine all Claims arising from the
assumption or rejection of executory contracts and unexpired leases;
12.1.11 to hear and determine all controversies arising in
connection with the Plan and other matters provided for in the Confirmation
Order;
12.1.12 to enforce the releases and discharge provided in
Article IX of this Plan;
12.1.13 to enforce all Orders previously entered by the
Court; and
12.1.14 to enforce the provisions of the Plan relating to
the payments and Distributions to be made by the Debtor and the Liquidating
Trust on or after the Confirmation Date; and
12.1.15 to hear and determine any tax, any fine or penalty
relating to a tax, or any addition to a tax under Section 505 of the Bankruptcy
Code.
12.2 Subsequent to the Confirmation Date, the Debtor is authorized and
directed to cause to be taken any action necessary or appropriate to carry out
the provisions of this Plan.
ARTICLE XIII
NOTICES AND MISCELLANEOUS PROVISIONS
13.1 NOTICES. All notices required to be made by third parties to the
Debtor in or under this Plan shall be in writing and shall be mailed by
registered or certified mail to the law offices of Tew Cardenas Rebak Kellogg
Lehman DeMaria & Tague, L.L.P., Attn: Thomas R. Lehman, P.A., Suite 2600, 201
South Biscayne Blvd., Miami, Florida 33131-4336. All notices required to be made
to the Creditors' Committees shall be mailed to:
Paul Steven Singerman, Esq. 200 S. Biscayne Blvd. Miami, FL 33131
Berger Davis & Singerman Suite 2950
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CASE NO: 00-12731-BKC-RAM
Timothy J. Norris, Esq. Lawrence A. Larose, Esq.
Buchanan Ingersoll P.C. Cadwalader, Wickersham & Taft
100 S.E. Second St., Suite 2100 100 Maiden Lane
Miami, FL 33131 New York, New York 10038
13.2 BINDING EFFECT OF THE PLAN. The provisions of the Plan shall be
binding upon and inure to the benefit of the Debtor, the Liquidating Trust and
all holders of Claims and Interests and their respective successors and assigns.
13.3 AMENDMENTS/MODIFICATION OF PLAN. The Debtor reserves the right to
amend or modify the Plan in any manner necessary prior to the entry of the
Confirmation Order. After the entry of the Confirmation Order, the Debtor may:
(1) amend or modify the Plan and documents related thereto in accordance with,
and to the extent permitted by Section 1127(b) of the Bankruptcy Code and
Bankruptcy Rule 3019 or (2) remedy any defect or omission or reconcile any
inconsistency in the Plan in such manner as may be necessary to carry out the
purpose and intent of the Plan. Pursuant to the terms of the Letter Agreement,
any amendment or modification to the Plan requires the consent of the Holders.
13.4 GOVERNING LAW. Except as mandated by the Bankruptcy Code or
Bankruptcy Rules as applicable, the rights and obligations arising under the
Plan shall be governed by, and construed and enforced in accordance with the
laws of the State of Florida; provided, however, the rights and obligations
arising under the Europa Common Stock, Europa Thirty Month Notes, Europa
Preferred Stock, the Indenture and the Fixed Rate Notes (the "Instruments")
shall be governed by the laws of the State of New York and Europa and any
Creditor receiving a Distribution under the Plan shall thereby irrevocably
consent to the jurisdiction of the State and
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CASE NO: 00-12731-BKC-RAM
Federal Courts of the State of Delaware for the determination of any Claims
arising from or in connection with the Instruments.
13.5 HEADINGS. Headings are used in the Plan for convenience and
reference only and shall not constitute a part of the Plan for any purpose.
13.6 SUCCESSORS AND ASSIGNS. The Plan and all provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and the
respective successors and assigns.
13.7 TIME. In computing any time periods described or allowed by the
Plan, the day of the act or event from which the designated period begins to run
shall not be included. The last day of the period so computed shall be included,
unless it is a Saturday, Sunday or a legal holiday, in which event, the period
will run until the next succeeding day which is not one of those aforementioned
days.
13.8 SEVERABILITY. Should any provision of the Plan be determined to be
unenforceable after the Effective Date such determination shall in no way limit
or effect the enforceability and operative effect of any and all of the other
provisions of the Plan.
13.9 REVOCATION. The Debtor reserves the right to revoke and withdraw
the Plan prior to Confirmation. If the Debtor revokes and/or withdraws the Plan,
then the Plan shall be deemed null and void and nothing contained herein shall
be deemed to constitute a waiver or release of any Claims by or against the
Debtor, or any other person or entity or to prejudice in any manner the rights
of such parties in any further proceedings involving the Debtor.
13.10 PLAN CONTROLS. In the event, and to the extent that any provision
of the Plan is inconsistent with the provisions of the Disclosure Statement or
any other agreement or
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CASE NO: 00-12731-BKC-RAM
instrument required or contemplated to be executed by Debtor, or any other
entity pursuant to the Plan, the provisions of the Plan shall control and take
precedence.
ARTICLE XIV
THE LIQUIDATING TRUST
14.1 THE LIQUIDATING TRUST AND LIQUIDATING TRUSTEE. The Liquidating
Trust shall be formed and established as of the Effective Date, at which time
Burton Emmer shall be appointed as Liquidating Trustee. The Liquidating Trust
shall be administered pursuant to the Liquidating Trust Agreement, the form of
which Liquidating Trust is attached as Exhibit "B" to the Plan. The
establishment of the Liquidating Trust and the appointment of Burton Emmer, as
Liquidating Trustee shall be authorized and approved by the Court in the
Confirmation Order.
14.2 ACQUISITION OF EXCEPTED ASSETS. On the Effective Date, the
Debtor's Estate shall absolutely and irrevocably grant, assign, transfer,
convey, deliver, delegate and set over to the Liquidating Trustee, and to any
successor Trustees and to the Liquidating Trust Estate, all right, title and
interest of the Debtor in and to the Disputed Claims Reserve, the Excepted
Assets, and proceeds thereof received by the Estate prior to the Effective Date.
The Retained Actions are being assigned to the Liquidating Trust in order to
implement the Plan and allow for further Distributions in accordance with the
Plan and Liquidating Trust and the Liquidating Trust shall be the Estate's
representative under Section 1123(b)(3)(B) of the Bankruptcy Code.
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CASE NO: 00-12731-BKC-RAM
ARTICLE XV
CONCLUSION
CONDITIONS PRECEDENT
15.1 CONDITIONS TO CONFIRMATION. The following are conditions precedent
to confirmation of the Plan that may be satisfied or waived in accordance with
Section 14.3 of the Plan:
(a) The Order Approving the Disclosure Statement and
Confirmation Order shall be in form and substance reasonably acceptable to the
Debtor, the Indenture Trustee, the Holders, and the Creditors Committees, but
subject to the approval of Europa. The Confirmation Order shall, among other
things, provide that:
(i) the provisions of the Confirmation Order are
non-severable and mutually dependent;
(ii) the transfers of Property by the Debtor (A) to the
Liquidating Trust (1) are or shall be legal, valid, and effective transfers of
property, (2) vest or shall vest the Liquidating Trust with good title to such
property free and clear of all liens, charges, claims, encumbrances or
interests, except as expressly provided in the Plan or Confirmation Order, (3)
do not and shall not constitute avoidable transfers under the Bankruptcy Code or
under applicable nonbankruptcy law, and (4) do not and shall not subject the
Liquidating Trust to any liability by reason of such transfer under the
Bankruptcy Code or under applicable nonbankruptcy law, including, without
limitation, any laws affecting successor or transferee liability, and (B) to
holders of Claims under the Plan are for good consideration and value;
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CASE NO: 00-12731-BKC-RAM
(iii) the transfers of Property by the Debtor (A) to
Europa (1) are or shall be legal, valid, and effective transfers of property,
(2) vest or shall vest Europa with good title to such property free and clear of
all liens, charges, claims, encumbrances or interests, except as expressly
provided in the Plan or Confirmation Order, (3) do not and shall not constitute
avoidable transfers under the Bankruptcy Code or under applicable nonbankruptcy
law, and (4) do not and shall not subject the Europa to any liability by reason
of such transfer under the Bankruptcy Code or under applicable nonbankruptcy
law, including, without limitation, any laws affecting successor or transferee
liability, and (B) to holders of Claims under the Plan are for good
consideration and value;
(iv) the Bankruptcy Court shall have determined that
Europa Thirty Month Notes, Europa Preferred Stock and Europa Common Stock issued
under the Plan in exchange for Claims against the Debtor are exempt from
registration under the Securities Act of 1933 pursuant to, and to the extent
provided by section 1145 of the Bankruptcy Code;
(v) any waiver of conditions to Confirmation and
effectiveness shall require the consent of the Holders; and
(vi) establish the Liquidating Trust and appoint Burton
Emmer as Liquidating Trustee.
15.2 CONDITIONS TO EFFECTIVE DATE. The following are conditions
precedent to the occurrence of the Effective Date, each of which may be
satisfied or waived in accordance with Section 15.3 of the Plan:
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CASE NO: 00-12731-BKC-RAM
(a) The Bankruptcy Court shall have entered one or more
orders (which may include the Confirmation Order) authorizing the assumption of
leases and executory contracts by the Debtor as contemplated by Article VI
hereof, but only if the Debtor seeks assumption of any leases and executory
contracts; .
(b) The Confirmation Order shall have been entered by the
Bankruptcy Court and shall be a Final Order.
15.3 WAIVER OF CONDITIONS TO CONFIRMATION OR CONSUMMATION. The
conditions set forth in Articles 15.1 and 15.2 of the Plan may be waived by the
Debtor in its sole discretion without any notice to parties in interest or the
Bankruptcy Court and without a hearing provided that the consent of the Holders,
the Creditors Committees and the Indenture Trustee will be required in the event
of any waiver that materially and adversely affects the treatment, Distributions
or rights afforded to the holders of Claims in this Plan. The failure to satisfy
or waive any condition to the Confirmation Date or the Effective Date may be
asserted by the Debtor in its sole discretion regardless of the circumstances
giving rise to the failure of such condition to be satisfied (including any
action or inaction by the Debtor in their sole discretion). The failure of the
Debtor in its sole discretion to exercise any of the foregoing rights shall not
be deemed a waiver of any other rights, and each such right shall be deemed an
ongoing right, which may be asserted at any time.
53
