Attached files
file | filename |
---|---|
8-K - CAPITAL GROWTH SYSTEMS INC /FL/ | v194450_8-k.htm |
EX-10.3 - CAPITAL GROWTH SYSTEMS INC /FL/ | v194450_ex10-3.htm |
EX-10.2 - CAPITAL GROWTH SYSTEMS INC /FL/ | v194450_ex10-2.htm |
THE
UNITED STATES BANKRUPTCY COURT
FOR
THE DISTRICT OF DELAWARE
IN
RE:
|
§
|
Chapter
11
|
§
|
||
GLOBAL
CAPACITY HOLDCO, LLC,
|
§
|
Case
No. 10-12302 (PJW)
|
et
al.1
|
§
|
(Jointly
Administered)
|
§
|
||
Debtors.
|
§
|
JOINT
DISCLOSURE STATEMENT FOR JOINT CHAPTER 11 PLAN OF
REORGANIZATION
FOR GLOBAL CAPACITY HOLDCO, LLC. AND ITS FILED
AFFILIATES DATED AS OF
AUGUST 11, 2010
THIS
DISCLOSURE STATEMENT IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION OF THE
PLAN. ACCEPTANCES OR REJECTIONS MAY NOT BE SOLICITED UNTIL THIS
DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY COURT.
Dated:
August 11, 2010
HELLER
DRAPER HAYDEN PATRICK
|
WOMBLE
CARLYLE SANDRIDGE &
|
&
HORN LLC
|
RICE,
PLLC
|
Douglas
S. Draper, Esq.
|
Francis
A. Monaco, Jr., Esq.
|
William
H. Patrick, III, Esq.
|
Mark
L. Desgrosseilliers, Esq.
|
650
Poydras Street – Suite 2500
|
222
Delaware Avenue, Suite 1501
|
New
Orleans, LA 70130
|
Wilmington,
DE 19801
|
Telephone: 504-299-3300
|
Telephone:
(302) 252-4320
|
Facsimile: 504-299-3399
|
Facsimile:
(302) 252-4330
|
ddraper@hellerdraper.com
|
fmonaco@wcsr.com
|
wpatrick@hellerdraper.com
|
mdesgrosseilliers@wcsr.com
|
Counsel
for Debtors and
|
Local
Counsel for Debtors and
|
Debtors
In Possession
|
Debtors
In Possession
|
1 The
Debtors in these cases, along with their case numbers, addresses, and the last
four digits of each Debtor’s federal tax identification number, are: Global
Capacity Holdco, LLC, 200 S. Wacker Drive, Suite 1650, Chicago,
IL 60606 (10-12302) (8858); Global Capacity Group, Inc., 730 North
Post Oak Road, Houston, TX 77024 (10-12303) (0073); 20/20
Technologies, Inc., 200 South Wacker, Suite 1650, Chicago, IL 60606 (10-12304)
(5612); Centrepath, Inc., 275 Winter Street, Waltham, MA 02451
(10-12305 (9034); Capital Growth Systems, Inc., 200 South Wacker Drive, Suite
1650, Chicago, IL 60606 (10-12306) (3505); Global Capacity Direct, LLC (f/k/a
Vanco Direct USA, LLC), 200 South Wacker Drive, Suite 1650, Chicago, IL 60606
(10-12307 (1970); FNS 2007, Inc. (fka Frontrunner Network Systems, Corp.), 200
South Wacker Drive, Suite 1650, Chicago, IL 60606 (10-12308) (7892); Nexvu
Technologies, LLC, 200 South Wacker Drive, Suite 1650, Chicago, IL 60606
(10-12309) (4626); Capital Growth Acquisition, Inc., 200 South Wacker Drive,
Suite 1650, Chicago, IL 60606 (10-12311) (4116); and 20/20 Technologies I, LLC,
200 South Wacker Drive, Suite 1650, Chicago, IL 60606 (10-12310)
(5514).
I. INTRODUCTION
Global
Capacity Holdco, LLC, Global Capacity Group, Inc., 20/20 Technologies, Inc.,
Centrepath, Inc., Capital Growth Systems, Inc., Global Capacity Direct, LLC
(f/k/a Vanco Direct USA, LLC), FNS 2007, Inc. (fka Frontrunner Network Systems,
Corp.), Nexvu Technologies, LLC, Capital Growth Acquisition, Inc., and 20/20
Technologies I, LLC (each a “Debtor” and
collectively, the “Debtors”), Debtors
and Debtors in possession in these bankruptcy cases, have filed a Joint Chapter 11 Plan of
Reorganization for Global Capacity Holdco, LLC. and its Filed Affiliates dated
August 11, 2010 [P-___]
(together with any modification, amendment or supplement, the “Plan”) with respect
to each of their Bankruptcy Cases. The Debtors submit this Joint Disclosure Statement for Joint
Chapter 11 Plan of Reorganization for Global Capacity Holdco, LLC. and its Filed
Affiliates dated August 11, 2010 (the “Disclosure
Statement”) pursuant to Section 1125 of title 11 of the United States
Code (the “Bankruptcy
Code”) and Rule 3016(b) of the Federal Rules of Bankruptcy Procedure (the
“Bankruptcy
Rules”) and describes the terms and provisions of the Debtors’ Plan,
filed with the United States Bankruptcy Court for the District of Delaware (the
“Bankruptcy
Court”) on August 11, 2010. A copy of the Plan is attached
hereto as Exhibit “A.” The Disclosure
Statement is submitted in connection with (i) the solicitation of acceptances or
rejections of the Plan filed by the Debtors with the Bankruptcy Court, and (ii)
the hearing to consider approval of the Plan (the “Confirmation
Hearing”) scheduled for the date set forth in the accompanying
notice.
This
Disclosure Statement sets forth certain information regarding the Debtors’
prepetition history as well as significant events that have occurred during the
Chapter 11 Cases. This Disclosure Statement also describes the terms
and provisions of the Plan, certain effects of confirmation of the Plan, certain
risk factors associated with the Plan and the manner in which distributions will
be made under the Plan, as well as the Plan confirmation
process.
2
For
a summary of the Plan, please see Section 2 hereof. For a discussion
of certain factors to be considered prior to voting, please see Section 9(C)
hereof.
The
statements contained in this Disclosure Statement are generally made as of the
date hereof, unless another time is specified, and delivery of this Disclosure
Statement will not create an implication that there has been no change in the
information set forth herein since the date of this Disclosure Statement or the
date of the materials relied upon in preparation of this Disclosure
Statement.
This
Disclosure Statement is not necessarily in accordance with Federal or State
securities laws or similar laws and may not be relied upon for any purpose other
than to determine how to vote on the Plan, and nothing contained herein will
constitute an admission of any fact or liability by any party, or be admissible
in any proceeding involving the Debtors or any other party, or be deemed
conclusive advice on the tax or other legal effects of the Plan on holders of
Claims and Interests (collectively, the “Claimants”).
The
description of the Plan contained in this Disclosure Statement is intended as a
summary only and is qualified in its entirety by reference to the Plan
itself. All Claimants who are entitled to vote are encouraged to read
and carefully consider this entire Disclosure Statement, including the Plan,
prior to submitting a ballot pursuant to any solicitation of votes with respect
to the Plan. If any inconsistency exists between the Plan and this
Disclosure Statement, the terms of the Plan are controlling.
3
This
Disclosure Statement contains summaries of certain provisions of the Plan,
certain statutory provisions, certain documents related to the Plan, certain
events in the Debtors’ Chapter 11 Cases and certain financial information.
Although the Debtors believe that these summaries are fair and accurate, the
summaries are qualified in their entirety to the extent that they do not set
forth the entire text of such documents or statutory provisions. In
the event of any inconsistency or discrepancy between a description contained in
this Disclosure Statement, including other documents or financial information
incorporated into the Disclosure Statement by reference, and the terms and
provisions of the Plan, the terms of the Plan will govern for all
purposes. In the event of any inconsistency between the Disclosure
Statement and any documents or financial information incorporated into the
Disclosure Statement, such other documents or other financial information, as
the case may be, will govern for all purposes. Capitalized terms used
but not otherwise defined in this Disclosure Statement shall have the meanings
ascribed to such terms in the Plan.
No one is
authorized to give any information with respect to the Plan other than that
which is contained in this Disclosure Statement. No representations
concerning the Debtors or the value of their property have been authorized by
the Debtors other than as set forth in this Disclosure Statement and the
documents attached to this Disclosure Statement. Any information,
representations or inducements made to obtain an acceptance of the Plan or that
are inconsistent with the information contained in this Disclosure Statement,
the documents attached to this Disclosure Statement, the Plan or the Plan
Supplement, should not be relied upon by any holder of a Claim or
Interest.
With
respect to any contested matters, adversary proceedings and other pending,
threatened or potential litigation or other actions, this Disclosure Statement
does not constitute, and may not be construed as, an admission of fact,
liability, stipulation or waiver, but rather as a statement made in the context
of settlement negotiations pursuant to Rule 408 of the Federal Rules of
Evidence.
4
To the
fullest extent permitted by law, the securities described in this Disclosure
Statement will be issued without registration under the Securities Act of 1933,
as amended (the “Securities Act”), or
any similar federal, state, or local law, pursuant to either section 1145 of the
Bankruptcy Code or the Private Placement Exemption under Section 4(2) of the
Securities Act or Regulation D promulgated thereunder, as more fully set forth
herein. There is currently no public market for the securities
described in this Disclosure Statement nor do the Debtors anticipate that there
will be such a public market. Such securities will not be listed on
any securities exchange. Any holders of Claims or Interests receiving
securities under the Plan should consult their own legal counsel concerning the
securities laws and the laws governing the ownership and transferability of any
such securities.
This
Disclosure Statement has not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission, nor has the Securities
and Exchange Commission or any state securities commission passed upon the
accuracy or adequacy of the statements contained in this Disclosure Statement or
upon the merits of the Plan.
Although
the Debtors believe that the Plan complies with all applicable provisions of the
Bankruptcy Code, the Debtors cannot assure such compliance or that the
Bankruptcy Court will confirm the Plan.
Although
the Debtors have used their best efforts to ensure the accuracy of the financial
information provided in this Disclosure Statement, the financial information
contained in or incorporated by reference into this Disclosure Statement has not
been audited, except as specifically indicated otherwise.
5
Consolidated
projected operating and financial results (the “Financial
Projections”) provided in this Disclosure Statement have been prepared by
or on behalf of the Debtors. The Financial Projections, while
presented with numerical specificity, are necessarily based on a variety of
estimates and assumptions which, though considered reasonable by the Debtors,
may not be realized, and are inherently subject to significant business,
economic, competitive, industry, regulatory, market and financial uncertainties
and contingencies, many of which are beyond the Debtors’ control. The
Debtors caution that no representations can be made as to the accuracy of the
Financial Projections or the likelihood that the projected results will be
achieved. Some assumptions inevitably will not
materialize. Future events and projections may be different from
those assumed or, alternatively, may have been unanticipated, and, thus, the
occurrence of these events may affect financial results in a materially adverse
or materially beneficial manner. Therefore, the Financial Projections
may not be relied upon as a guaranty or other assurance of the actual results
that will occur.
A.
|
PURPOSE
OF DISCLOSURE STATEMENT
|
The
Debtors have prepared this Disclosure Statement in connection with its
solicitation of acceptances of the Plan. The purpose of this
Disclosure Statement is to provide Claimants with sufficient information to make
an informed decision as to whether to accept or reject the Plan. Each
Claimant entitled to vote to accept or reject the Plan should read this
Disclosure Statement and the Plan in their entirety before voting on the
Plan. The Plan is a legally binding arrangement. No
summary of the Plan should be relied upon in determining whether to accept or
reject the Plan.
All
exhibits to the Plan will be filed as part of the Plan Supplement prior to the
deadline for filing objections to confirmation of the Plan, or in accordance
with such other deadlines as may be established in the Disclosure Statement
Order or another Final Order of the Bankruptcy Court.
On
___________, 2010, after notice and a hearing, the Bankruptcy Court approved
this Disclosure Statement as containing information of a kind and in sufficient
detail adequate to enable the Claimants to make informed judgments as to whether
to accept or reject the Plan. APPROVAL OF THIS DISCLOSURE STATEMENT
DOES NOT, HOWEVER, CONSTITUTE A DETERMINATION BY THE BANKRUPTCY COURT AS TO THE
FAIRNESS OR THE MERITS OF THE PLAN.
6
Not every
Claimant is entitled to vote on the Plan. As prescribed by the
Bankruptcy Code and the Bankruptcy Rules, Claims asserted against, and Interests
in, the Debtors are placed into Classes. The Plan designates ten (10)
separate Classes of Claims and Interests. The classification and the
treatment of each Class is discussed in detail below. Under the
Bankruptcy Code, only Classes of Claims or Interests that are impaired and will
be receiving or retaining property under the Plan are entitled to vote to accept
or reject the Plan. Accordingly, the Debtors are seeking acceptance
of the Plan by holders of Claims in Classes 1, 2, 3, 4, 5, and 7 the Claims of
which are impaired and will be receiving distributions under the
Plan. Holders of Claims in Class 6 are
unimpaired. Accordingly, holders of Claims in this Class are deemed
to accept the Plan and, therefore, are not entitled to vote to accept or reject
the Plan. Holders of Claims or Interests in Classes 8, 9 and 10 will
neither be receiving distributions nor receiving or retaining any interest in
the Debtors, the Liquidating Debtors, the Reorganized Debtors, the Estates, the
Assets or other property or interests in property thereof on account of such
Interests. Accordingly, holders of Interests in this Class are deemed
to reject the Plan and, therefore, not entitled to vote to accept or reject the
Plan.
The
holder of any Claim that, as of the Voting Record Date (as defined in the
Disclosure Statement Order), (a) has been disallowed, (b) is the
subject of a pending objection, or (c) was listed on the Schedules as
unliquidated in amount, contingent or disputed (if no contrary proof of claim
with respect to such Claim has been timely filed) or a proof of claim with
respect to which was filed on or before the Bar Date, and such proof of claim
asserts such Claim as unliquidated in amount, contingent or disputed, will not
be entitled to vote on the Plan, unless, on or prior to the Voting Record Date,
the Bankruptcy Court enters a Final Order directing otherwise; provided, however, that if only
a portion of such Claim has been disallowed, objected to or listed or asserted
(as applicable) as unliquidated, contingent or disputed, such holder will be
entitled to vote the remainder of such Claim in an amount determined pursuant to
the Plan. Unless otherwise provided in this Disclosure Statement, if
you are not entitled to vote solely because your Claim is the subject of a
pending objection, you may apply to the Bankruptcy Court for an order allowing
your Claim for voting purposes only, in accordance with the Disclosure Statement
Order.
7
To be
counted, holders of impaired Claims entitled to vote will cast their vote to
accept or reject the Plan in accordance with the instructions on the ballot (the
“Ballot”)
provided as part of the Solicitation Package (as defined below). Such
Ballots should be cast in accordance with the solicitation procedures
established pursuant to the Disclosure Statement Order. Any Ballot
received after the Voting Deadline Date (as defined in the Disclosure Statement
Order) will be counted in the sole discretion of the Debtors.
Pursuant
to section 1128 of the Bankruptcy Code, the Confirmation Hearing will be held on
___________, 2010, at _______ [a.m.] [p.m.] (Eastern Time), before the Honorable
Peter J. Walsh, United States Bankruptcy Court, 824 Market Street, 6th Floor,
Courtroom #2, Wilmington,
Delaware 19801. The Bankruptcy Court has directed that
objections, if any, to confirmation of the Plan be served and filed on or before
___________, 2010, at _______ [a.m.] [p.m.] (Eastern Time), in the manner
described in this Disclosure Statement under Section XI(B). The
Confirmation Hearing may be adjourned from time to time by the Bankruptcy Court
without further notice except for an announcement of the adjourned date made at
the Confirmation Hearing or at any subsequent adjourned date of the Confirmation
Hearing.
At the
Confirmation Hearing, the Bankruptcy Court will, among other
things:
8
|
•
|
determine
whether sufficient majorities in number and amount from each Class
entitled to vote have delivered properly executed votes to approve the
Plan;
|
|
•
|
hear
and determine objections, if any, to the Plan and to confirmation of the
Plan that have not been previously disposed
of;
|
•
|
determine
whether the Plan meets the confirmation requirements of theBankruptcy
Code; and
|
•
|
determine
whether to confirm the Plan.
|
THE
DEBTORS BELIEVE THAT THE PLAN PROVIDES THE BEST POSSIBLE RECOVERIES TO CLAIMANTS
AND THAT ACCEPTANCE OF THE PLAN IS IN THE BEST INTERESTS OF EVERY CLASS OF
CLAIMANTS. ACCORDINGLY, THE DEBTORS RECOMMEND THAT YOU VOTE TO ACCEPT
THE PLAN.
B
|
OVERVIEW
OF CHAPTER 11
|
Chapter
11 is the principal business restructuring chapter of the Bankruptcy Code. Under
chapter 11, a debtor is authorized to restructure its business for the benefit
of itself, its creditors and its equity interest holders. In addition to
permitting the rehabilitation of a debtor, another goal of chapter 11 is to
promote equality of treatment for similarly situated creditors and similarly
situated equity interest holders with respect to the distribution of a debtor's
assets.
The
commencement of a chapter 11 case creates an estate that is comprised of all of
the legal and equitable interests of the debtor as of the bankruptcy filing
date. The Bankruptcy Code provides that the debtor may continue to
operate its business and remain in possession of its property as a "debtor in
possession."
The
consummation of a chapter 11 plan is the principal objective of a chapter 11
restructuring case. A chapter 11 plan sets forth the means for satisfying claims
against and interests in a debtor. Confirmation of a chapter 11 plan by the
bankruptcy court makes that plan binding upon the debtor, any issuer of
securities under the plan, any Person acquiring property under the plan and any
creditor or equity interest holder of a debtor. Subject to certain limited
exceptions, the order approving confirmation of a plan provides releases to a
debtor and any debt that arose prior to the date of confirmation of the plan is
satisfied in accordance with the terms of that particular
plan.
9
In
general, a chapter 11 plan (a) divides claims and equity interests into separate
classes, (b) specifies the property, if any, that each class is to receive under
the plan, and (c) contains other provisions necessary to the restructuring of
the debtor and that are required or permitted by the Bankruptcy
Code.
Pursuant
to section 1125 of the Bankruptcy Code, acceptance or rejection of a plan may
not be solicited after the commencement of a chapter 11 case until such time as
the court has approved the disclosure statement as containing adequate
information. Pursuant to section 1125(a) of the Bankruptcy Code, "adequate
information" is information of a kind, and in sufficient detail, to enable a
hypothetical reasonable investor to make an informed judgment regarding the
chapter 11 plan. To satisfy applicable disclosure requirements, the Debtors
submit this Disclosure Statement to holders of Claims that are impaired and not
deemed to have rejected the Plan and Interests that are impaired and not deemed
to have accepted or rejected the Plan.
C.
|
THE
PURPOSE AND EFFECT OF THE PLAN
|
After
careful review of the Debtors’ current business operations and various
liquidation and recovery scenarios, the Debtors have concluded that the recovery
for holders of Allowed Claims and Interests will be maximized by the Debtors’
sale of the Assets as a going concern pursuant to the restructuring described in
the Plan. The Debtors believe that the Debtors’ businesses and assets
have significant value that would not be realized in a liquidation scenario,
either in whole or in substantial part.
10
The
Debtors believe that the Plan provides the best recoveries possible for holders
of Allowed Claims and Interests and strongly recommend that, if such holders are
entitled to vote, they vote to accept the Plan. As discussed in
further detail in this Disclosure Statement, the Debtors believe that any
alternative to confirmation, such as liquidation or attempts by another entity
to file an alternative plan of reorganization, could result in significant
delays, litigation, and additional costs.
Several
documents that will be included in the Plan Supplement are described in this
Disclosure Statement, but these summaries are not a substitute for a complete
understanding of such documents and should not be relied upon. Please
review the full text of all such documents in the Plan Supplement.
D.
|
MANAGEMENT
OF THE DEBTORS, LIQUIDATING DEBTORS AND THE REORGANIZED
DEBTORS
|
The
current officers and manager of the Debtors are Patrick Shutt, George King, Jack
Lodge, Dan Kardatzke, Nigel Meacham, and Jonathan Wynne Evans. From and after
the Effective Date, (i) each of the Liquidating Debtors shall be managed and
administered by and through the Plan Administrator, who shall be appointed the
sole manager of each of the Liquidating Debtors and shall have full authority to
administer the provisions of the Plan; and (ii) to the extent a Reorganization
Election has been made by the Purchaser, the reorganized Debtors shall be
managed and administered by and through a new Board of Directors and new
officers. To the extent required by Section 1129(a)(5) of the
Bankruptcy Code, the identity and affiliations of any individual proposed to
serve, after confirmation of the Plan, as a director, officer, voting trustee or
successor to the Debtors, as well as the identity of any insider that will be
employed or retained by the Reorganized Debtors and the nature of any
compensation for such insider, will be disclosed prior to the Confirmation
Hearing.
11
II. SUMMARY
OF CLASSIFICATION AND TREATMENT
OF CLAIMS AND
INTERESTS
The
following is a summary of the Plan, which is intended to provide parties in
interest with a concise description of the Plan. THIS SUMMARY IS NOT
A COMPLETE DESCRIPTION OF THE PLAN AND DOES NOT SUBSTITUTE FOR THE PLAN AND THE
DISCLOSURE STATEMENT, BOTH OF WHICH SHOULD BE READ CAREFULLY IN THEIR
ENTIRETY. This summary is provided for convenience only, and in the
event of any discrepancy between this summary overview and the terms of the
Plan, the Plan controls.
A.
|
NARRATIVE
SUMMARY OF THE
PLAN
|
Prior to
filing these Chapter 11 Cases, the Debtors, with the assistance of its financial
advisor and in consultation with certain of the prepetition lenders, pursued a
range of options to address the Debtors' concerns about their ability to service
their debt going forward, including new financing, refinancing and the sale of
certain or all of the Debtors' assets or business. After exploring the strategic
alternatives available to them, the Debtors have determined that the best way at
this time to maximize the value of their assets for the benefit of their
creditors, is to seek a sale of their Assets pursuant to Section 363 of the
Bankruptcy Code as part of the Plan.
Certain
Pre-Petition Debenture Lenders and the Tranche B Lenders have agreed to act as
the stalking horse bidder for the Acquired Assets, and their bid for the
Acquired Assets, as fully set forth in the APA, will serve as the opening bid
for such Assets subject to a competitive bidding process that is consistent with
both the timing of these Chapter 11 Cases, as set forth in the Plan Support
Agreement (discussed below) and the Debtors' fiduciary duties, to maximize value
for their estates, stakeholders and parties in interest. The APA
provides for a Credit Bid of a portion of the Pre-Petition Debenture Lenders’
Secured Claims by the respective Pre-Petition Debenture Agent (as provided in
the applicable Pre-Petition Debenture Agreements) and of the Tranche B Loan by
the Tranche B Agent, the assumption of certain of the Debtors’ liabilities and
other Plan funding as more fully described in the Plan and APA.
12
The
Pre-Petition Debenture Holders, through their respective Pre-Petition Debenture
Agent, and the Tranche B Lenders have agreed to accept equity in Newco in
exchange for the consideration being offered for the Acquired Assets, and have
further agreed to gift a portion of the Plan Consideration that would otherwise
be distributed to the respective Pre-Petition Debenture Agent on behalf of the
holders of Allowed Pre-Petition Debenture Claims to the holders of Allowed
Unsecured Claims and, under certain circumstances, to the holders of Allowed
Debtors’ Parent Interests. The holders of Pre-Petition Debenture
Claims have further agreed among themselves to a distribution on account of
their respective Deficiency Claims pursuant to various formulas set forth in the
Plan.
The Plan
contemplates that the proposed Sale will result in either (i) the transfer of
the Assets to Purchaser pursuant to a sale under section 363 of the Bankruptcy
Code; or, (ii) if a Reorganization Election is made, the issuance by the Debtors
to Purchaser of 100% of the equity interest of the Reorganized Debtors in
consideration of the Sale Proceeds. Either scenario will provide for
substantially similar treatment to holders of Claims and Interests as outlined
above, unless otherwise agreed to or as determined by the Bankruptcy
Court.
13
At the
direction of Purchaser, to implement the Plan, the applicable Debtors or
Reorganized Debtors, as the case may be, may enter into such transactions and
may take such actions as may be necessary or appropriate to effect a corporate
restructuring of their respective businesses, to otherwise simplify the overall
corporate structure of the Debtors or Reorganized Debtors, as the case may be,
or to reincorporate certain of the Debtors under the laws of jurisdictions other
than the laws of which the applicable Debtors are presently incorporated. Such
restructuring may include a debt-for-equity exchange, one or more mergers,
consolidations, restructurings, dispositions, liquidations, dissolutions or
reincorporations, as may be determined by the Purchaser to be necessary or
appropriate. The actions to effect such restructuring may include, at the
Purchaser’s option (i) the execution and delivery of appropriate agreements or
other documents of merger, consolidation, restructuring, disposition,
liquidation or dissolution containing terms that are consistent with the terms
of the Plan and that satisfy the applicable requirements of applicable state law
and such other terms to which the applicable entities may agree, (ii) the
execution and delivery of appropriate instruments of transfer, assignment,
assumption or delegation of any asset, property, right, liability, duty or
obligation on terms consistent with the terms of the Plan and having such other
terms to which the applicable entities may agree, (iii) the filing of
appropriate certificates or articles of merger, consolidation or dissolution
pursuant to applicable state law, and (iv) all other actions that the applicable
entities determine to be necessary or appropriate, including making filings or
recordings that may be required by applicable state law in connection with such
transactions.
To
accommodate the Plan structure determined by Purchaser, the Plan may be modified
at any time prior to the Effective Date. In such event, and provided
that the Plan Consideration and the Plan Distribution is not adversely affected
by such modifications, this Disclosure Statement will not be amended and, in
accordance with the Disclosure Statement Order, no re-solicitation of votes on
the Plan will be required.
The
operation of the Debtors’ business is subject to various licensing and other
requirements that require regulatory and other third-party
approvals. To allow for the occurrence of the Effective Date by
November 25, 2010, in accordance with the Plan Support Agreement, and prior to
Purchaser obtaining all such approvals, the Pre-Petition Debenture Holders and
Tranche B Lenders, in their capacity as Purchaser, have agreed to a closing of
the Sale prior to obtaining such approvals and for operation of the
Non-Transferred Assets by the Plan Administrator in accordance with the terms of
the APA and the Management Agreement.
14
B.
|
SUMMARY
TREATMENT OF CLAIMANTS UNDER THE
PLAN
|
The
Plan classifies and provides for the treatment of Claims and Interests as
summarized in the table below. If the Plan is not confirmed, the
Debtors may attempt to formulate a different plan of
reorganization. However, if the Plan is not confirmed, the Chapter 11
Cases may be converted to cases under chapter 7 of the Bankruptcy Code, in which
case a trustee would be elected or appointed to liquidate the Debtors’
assets. The following chart summarizes the treatment of the Claims
and Interests and anticipated distributions under the Plan.
CLASS
|
TREATMENT
|
ESTIMATED
AMOUNT OF
CLAIMS
|
ESTIMATED
PERCENTAGE
RECOVERY
UNDER PLAN
|
|||
Unclassified.
Allowed
Administrative
Expense
Claims.
|
|
Unimpaired. Not
entitled to vote.
A.
Time for Filing Administrative Expense Claims.
The
holder of an Administrative Expense Claim (including, for the avoidance of
doubt, any claim for substantial contribution under section 503(b)(3) or
(4) of the Bankruptcy Code), other than the holder of:
a. a
Fee Claim;
b. an
Administrative Expense Claim that has been Allowed on or before the
Effective Date;
c. an
Administrative Expense Claim on account of fees and expenses on or after
the Petition Date by ordinary course professionals retained by the Debtors
pursuant to an order of the Bankruptcy Court; and
d. an
Administrative Expense Claim arising, in the ordinary course of business,
out of the employment by one or more Debtors of an individual from and
after the Petition Date, but only to the extent that such Administrative
Expense Claim is solely for outstanding wages, commissions, accrued
benefits, or reimbursement of business expenses.
|
|
To
Be Determined
|
|
100%
|
15
|
must file with the Bankruptcy
Court and serve on the Debtors, a request for payment of such
Administrative Expense Claim (1) on or before the Confirmation Objection
Deadline for any such Administrative Expense Claims claimed for the
period from the Petition Date through the Confirmation
Objection Deadline, and (2) within thirty (30) days after the Effective
Date for any such Administrative Expense Claims claimed for the
period from the Confirmation Objection Deadline through the
Effective Date. Such request of Administrative Expense Claim must
include at a minimum: (i) the name of the applicable Debtor that is
purported to be liable for the Administrative Expense Claim and if the
Administrative Expense Claim is asserted against more than one Debtor, the
exact amount asserted to be owed by each such Debtor; (ii) the name of the
holder of the Administrative Expense Claim; (iii) the amount of the
Administrative Expense Claim; (iv) the basis of the Administrative Expense
Claim; and (v) supporting documentation for the Administrative Expense
Claim.
FAILURE
TO FILE AND SERVE SUCH REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM
TIMELY AND PROPERLY SHALL RESULT IN THE ADMINISTRATIVE EXPENSE CLAIM BEING
FOREVER BARRED AND DISCHARGED.
B. Treatment
of Administrative Expense Claims.
Each
Allowed Administrative Expense Claim shall be paid (i) in full, in Cash,
by the Liquidating Debtors on the later of (x) the Effective Date or (y)
the date such Claim becomes Allowed, or due and payable in the ordinary
course of business, or (ii) on such other terms and conditions as may be
agreed to between the holder of such Administrative Expense Claim, the
Liquidating Debtors and the Purchaser.
|
|
|
16
Unclassified.
Allowed
Tranche
A
DIP Facility
Claims.
|
Unimpaired. Not
entitled to vote.
The
holder of the Tranche A DIP Facility Claim shall be paid by the
Liquidating Debtors in full in Cash on the Effective Date of the Plan, or
as soon thereafter as is reasonably practicable, for all obligations
arising out of or in connection with the Tranche A Loan (whether set forth
in the DIP Facility, the Interim DIP Financing Order or the Final DIP
Financing Order) unless otherwise agreed to in writing by the holder of
the Tranche A DIP Facility Claim.
|
$3,000,000
plus accrued interest
|
100%
|
|||
Unclassified.
Allowed
Tranche
B
DIP Facility
Claims.
|
Unimpaired. Not
entitled to vote.
In
the event that Newco is the Purchaser, each holder of a Tranche B DIP
Facility Claim shall receive, in full and final satisfaction of such
Allowed Tranche B DIP Facility Claim, its Pro Rata Share (based on its
interest in the Tranche B Loan) of Series C Preferred Stock. In
the event Newco is not the Purchaser, each holder of a Tranche B DIP
Facility Claim shall be paid by the Liquidating Debtors in full in cash on
the Effective Date of the Plan (unless paid earlier pursuant to a Final
Order approving the relief requested in the Bid Procedures Motion), or as
soon thereafter as is reasonably practicable, all obligations arising out
of or in connection with the Tranche B Loan (whether set forth in the DIP
Facility, the Interim DIP Financing Order or the Final DIP Financing
Order).
All
distributions to be made to the holders of Tranche B DIP Facility Claims
pursuant to this Article 2.2(b) shall be made, at the option of the
Tranche B Agent, to or in accordance with the instructions from the
Tranche B Agent for the benefit of such holders.
|
$7,250,000
plus accrued interest
|
100%
|
|||
Unclassified.
Allowed
Fee
Claims
|
|
Unimpaired. Not
entitled to vote.
A. Time
for Filing Fee Claims.
Any
Professional seeking allowance by the Bankruptcy Court of a Fee Claim
shall file its respective final application for allowance of compensation
for services rendered and reimbursement of expenses incurred prior to the
Effective Date no later than forty-five (45) days after the Effective
Date. FAILURE TO FILE
SUCH FEE APPLICATION TIMELY SHALL RESULT IN THE FEE CLAIM BEING FOREVER
BARRED AND DISCHARGED.
|
|
To
Be Determined
|
|
100%
|
17
|
Objections
to such Fee Claims, if any, must be filed and served no later than
sixty-five (65) days after the Effective Date or such other date as
established by the Bankruptcy Court. The Liquidating Debtors
may seek an extension of this deadline for objecting to Fee Claims on ex
parte motion.
B. Treatment
of Fee Claims.
All
Professionals seeking allowance by the Bankruptcy Court of a Fee Claim
shall be paid by the Liquidating Debtors in full in cash in such amounts
as are approved by the Bankruptcy Court: (i) upon the later of (x) the
Effective Date, and (y) ten (10) calendar days after the date upon which
the order relating to the allowance of any such Fee Claim is entered, or
as soon thereafter as is reasonably practicable, or (ii) upon such other
terms as may be mutually agreed upon between the holder of such Fee Claim
and the Liquidating Debtors. On the Effective Date, or as soon thereafter
as is reasonably practicable, the Liquidating Debtors shall reserve and
hold in a segregated account or shall place in escrow Cash in an amount
equal to the accrued but unpaid estimated Fee Claims as of the Effective
Date, which Cash shall be disbursed solely to the holders of Allowed Fee
Claims with the remainder to be reserved until all Allowed Fee Claims have
been paid in full or all remaining Fee Claims have been Disallowed by
Final Order, at which time any remaining Cash in the segregated account
shall become the sole and exclusive property of the Liquidating Debtors to
be distributed in accordance with the terms of the Plan.
|
|
|
Unclassified.
Allowed
U.S.
Trustee Fees
|
Unimpaired. Not
entitled to vote.
The
Liquidating Debtors shall pay all U.S. Trustee Fees on an ongoing basis on
the date such U.S. Trustee Fees become due, until such time as a final
decree is entered closing the applicable Bankruptcy Case or the applicable
Bankruptcy Case is converted or dismissed, or the Bankruptcy Court orders
otherwise.
|
To
Be Determined
|
100%
|
18
Unclassified.
Allowed
Priority
Non-Tax
Claims
|
Unimpaired. Not
entitled to vote.
Each
Allowed Priority Non-Tax Claim shall be paid the Allowed amount of its
Priority Non-Tax Claim (a) in full, in Cash, by the Liquidating Debtors on
the Effective Date, or as soon thereafter as is reasonably practicable, or
(b) upon such other terms as may be mutually agreed upon between such
holder of an Allowed Priority Non-Tax Claim, the Liquidating Debtors and
the Purchaser.
|
To
Be Determined
|
100%
|
|||
Unclassified.
Allowed
Priority
Tax
Claims
|
Unimpaired. Not
entitled to vote.
Each
Allowed Priority Tax Claim shall be paid the Allowed amount of its
Priority Tax Claim (a) in full, in Cash, by the Liquidating Debtors on the
Effective Date, or as soon thereafter as is reasonably practicable, (b)
over a period ending not later than five (5) years after the Petition
Date, or (c) upon such other terms as may be mutually agreed upon between
such holder of an Allowed Priority Tax Claim, the Liquidating Debtors and
the Purchaser.
|
To
Be Determined
|
100%
|
|||
Class
1: July
Debenture
Secured
Claims
|
|
Impaired. Entitled
to vote.
(a)
On the Effective Date or as soon thereafter as is reasonably practicable,
each holder of an Allowed July Debenture Secured Claim shall receive, in
full and final satisfaction of such Allowed July Debenture Secured Claim,
its respective July Debenture Distribution.
(b)
For all purposes under the Plan, each holder of a July Debenture Secured
Claim shall have an Allowed Deficiency Claim in Class 7 in accordance with
section 506(a) of the Bankruptcy Code equal to (a) in the event that Newco
is the Purchaser of the Assets, the difference between such holder’s Pro
Rata amount of the Credit Bid and the Allowed amount of the holder’s
Allowed July Debenture Secured Claim; and (b) if Newco is not the
Purchaser, the difference between the Cash such holder receives under the
Plan pursuant to subsection (i), above, and the Allowed Amount of the July
Debenture Secured Claim.
|
|
$5,800,000
|
|
To
Be
Determined
|
19
All
distributions to be made to the holders of July Debenture Secured Claims
pursuant to the Plan shall be made to the July Debenture Agent for the
benefit of such holders.
|
||||||
Class
2: August
Debenture
Secured
Claims
|
Impaired. Entitled
to vote.
(a)
On the Effective Date or as soon thereafter as is reasonably practicable,
each holder of an Allowed August Debenture Secured Claim shall receive, in
full and final satisfaction of such Allowed August Debenture Secured
Claim, its respective August Debenture Distribution.
(b)
For all purposes under the Plan, each holder of an August Debenture
Secured Claim shall have an Allowed Deficiency Claim in Class 7 in
accordance with section 506(a) of the Bankruptcy Code equal to (a) in the
event that Newco is the Purchaser of the Assets, the difference between
such holder’s Pro Rata amount of the Credit Bid and the Allowed amount of
the holder’s Allowed August Debenture Secured Claim; and (b) if Newco is
not the Purchaser, the difference between the Cash such holder receives
under the Plan pursuant to subsection (i), above, and the Allowed Amount
of the August Debenture Secured Claim.
All
distributions to be made to the holders of August Debenture Secured Claims
pursuant to the Plan will be made to the August Debenture Agent for the
benefit of such holders.
|
$2,400,000
|
To
Be Determined
|
|||
Class
3: VPP
Debenture
Secured
Claims
|
Impaired. Entitled
to vote.
(a)
On the Effective Date or as soon thereafter as is reasonably practicable,
each holder of an Allowed VPP Debenture Secured Claim shall receive, in
full and final satisfaction of such Allowed VPP Debenture Secured Claim,
its respective VPP Debenture Distribution.
|
$1,500,00
|
To
Be
Determined
|
20
(b)
For all purposes under the Plan, each holder of a VPP Debenture Secured
Claim shall have an Allowed Deficiency Claim in Class 7 in accordance with
section 506(a) of the Bankruptcy Code equal to (a) in the event that Newco
is the Purchaser of the Assets, the difference between such holder’s Pro
Rata amount of the Credit Bid and the Allowed amount of the holder’s
Allowed VPP Debenture Secured Claim; and (b) if Newco is not the
Purchaser, the difference between the Cash such holder receives under the
Plan pursuant to subsection (i), above, and the Allowed Amount of the VPP
Debenture Secured Claim.
All
distributions to be made to the holders of VPP Debenture Secured Claims
pursuant to the Plan shall be made to the VPP Debenture Agent for the
benefit of such holders.
|
||||||
Class 4:
March
Debenture
Secured
Claims
|
|
Impaired. Entitled
to vote.
(a)
On the Effective Date or as soon thereafter as is reasonably practicable,
each holder of an Allowed March Debenture Secured Claim shall receive, in
full and final satisfaction of such Allowed March Debenture Secured Claim,
its respective March Debenture Distribution.
|
|
$18,000,000
|
|
To
Be Determined
|
(b)
For all purposes under the Plan, each holder of a March Debenture Secured
Claim shall have an Allowed Deficiency Claim in Class 7 in accordance with
section 506(a) of the Bankruptcy Code equal to (a) in the event that Newco
is the Purchaser of the Assets, the difference between such holder’s Pro
Rata amount of the Credit Bid and the Allowed amount of the holder’s
Allowed March Debenture Secured Claim; and (b) if Newco is not the
Purchaser, the difference between the Cash such holder receives under the
Plan pursuant to subsection (i), above, and the Allowed Amount of the
March Debenture Secured Claim.
All
distributions to be made to the holders of March Debenture Secured Claims
pursuant to the Plan shall be made to the March Debenture Agent for the
benefit of such holders.
|
21
Class 5:
November
Debenture
Secured
Claims
|
Impaired. Entitled
to vote.
(a)
On the Effective Date or as soon thereafter as is reasonably practicable,
each holder of an Allowed November Debenture Secured Claim shall receive,
in full and final satisfaction of such Allowed November Debenture Secured
Claim, its respective November Debenture Distribution.
(b)
For all purposes under the Plan, each holder of a November Debenture
Secured Claim shall have an Allowed Deficiency Claim in Class 7 in
accordance with section 506(a) of the Bankruptcy Code equal to (a) in the
event that Newco is the Purchaser of the Assets, the difference between
such holder’s Pro Rata amount of the Credit Bid and the Allowed amount of
the holder’s Allowed November Debenture Secured Claim; and (b) if Newco is
not the Purchaser, the difference between the Cash such holder receives
under the Plan pursuant to subsection (i), above, and the Allowed Amount
of the November Debenture Secured Claim.
All
distributions to be made to the holders of November Debenture Secured
Claims pursuant to the Plan shall be made to the November Debenture Agent
for the benefit of such holders.
|
$10,300,000
|
To
Be Determined
|
|||
Class
6: Mission
Critical
Vendor
Claims
|
Unimpaired.
Not entitled to vote.
Each
Mission Critical Vendor Claim will be assumed by and will be entitled to
payment by Purchaser (or, in the event of a Restructuring Election, by the
Reorganized Debtors) in cash in full in accordance with the terms of the
APA, net of any deposits or other payments made by the Debtors during the
pendency of the Chapter 11 Cases.
|
To
Be Determined
|
100%
|
|||
Class
7:
Unsecured
Claims.
|
|
Impaired. Entitled
to vote.
(a)
In the event that Newco is the Purchaser, on the Effective Date or as soon
thereafter as is reasonably practicable, each holder of an Allowed
Unsecured Claim (including the holders of any Deficiency Claims) shall be
entitled to a Pro Rata Share of the New Common Stock Pool.
|
|
To
Be Determined
|
|
To
Be Determined
|
22
(b)
In the event that Newco is not the Purchaser, (i) each holder of an
Allowed Unsecured Claim (including the holders of any Deficiency Claim)
shall receive its Pro Rata Share of any Cash portion of the Sale Proceeds
remaining after payment in full of all Allowed Secured Claims in Classes
1, 2, 3, 4, and 5, on the Effective Date or as soon thereafter as is
reasonably practicable, and (ii) the Debtors and Newco will engage in
discussions about an alternative distribution to Class 7 and Class 10 in
lieu of the New Common Stock Pool.
(c)
To the extent permitted by law, in the event that Newco is the Purchaser,
on the Effective Date the holders of Deficiency Claims in Classes 1, 2, 3,
4 and 5 shall assign their right to receive distributions of New Common
Stock from the New Common Stock Pool on account of their Deficiency Claims
to (i) the holders of Class 7 Unsecured Claims that are not Deficiency
Claim holders and (ii) the holders of Class 10 Interests, at the direction
of the Debtors.
All
distributions to be made to the holders of Pre-Petition Debenture Claims
pursuant to Article 3.1(A)(7)(a) of the Plan will be made to the
applicable Pre-Petition Debenture Agent for the benefit of such
holders.
|
||||||
Class
8:
Intercompany
Claims.
|
Impaired.
Not entitled to vote.
Each
Intercompany Claim will be disallowed, cancelled, extinguished or
reinstated at the option of Purchaser.
|
To
Be Determined
|
To
Be Determined
|
|||
Class
9:
Subsidiary
Debtors’
Interests
|
|
Impaired. Not
entitled to vote.
To
the extent not otherwise transferred under the APA, on the Effective Date,
the Subsidiary Debtors’ Interests shall be disallowed, cancelled,
extinguished or reinstated at the option of Purchaser, subject to Article
5.2(c) of the Plan. For the avoidance of doubt, the Debtors’
equity interest in Magenta NetLogic Limited (U.K.) shall not be cancelled
and is being acquired by the Purchaser pursuant to the
APA.
|
|
To
Be Determined
|
|
To
Be Determined
|
23
Class
10: Debtors’
Parent
Interests.
|
|
Impaired. Not
entitled to vote.
The
Debtors’ Parent Interests shall be cancelled as of the Effective
Date.
(a)
To the extent permitted by law, in the event that Newco is the Purchaser,
on the Effective Date, the holders of Allowed Debtors’ Parent Interests
shall receive a Pro Rata Share of the distributions from the New Common
Stock Pool which would otherwise be attributable to the holders of
Deficiency Claims under this Plan but which have been assigned by the
holders of Deficiency Claims in Classes 1, 2, 3, 4 and 5 to the holders of
Allowed Debtors’ Parent Interests. The distribution will only
be effectuated in a manner agreed by Newco and the Debtors that will not
require registration under any applicable law, including, without
limitation, the Securities Act of 1933, the Securities Exchange Act of
1934, or any state securities laws.
(b)
In the event that Newco is not the Purchaser, (i) each holder of an
Allowed Debtors’ Parent Interest shall receive its Pro Rata Share of any
Cash portion of the Sale Proceeds remaining after payment in full of all
Allowed Secured Claims in Classes 1, 2, 3, 4, and 5 and all Allowed
Unsecured Claims (including Deficiency Claims) in Class 7, on the
Effective Date, or as soon thereafter as is reasonably practicable, and
(ii) the Debtors and Newco will engage in discussions about an alternative
distribution to Class 7 and Class 10 in lieu of the New Common Stock
Pool.
|
|
N/A
|
|
N/A
|
III. GENERAL
OVERVIEW AND BACKGROUND INFORMATION
A.
|
BACKGROUND
AND GENERAL INFORMATION
|
1.
|
Debtors’
History and Operations
|
On
September 29, 1999, Capital Growth Systems, Inc. d/b/a Global Capacity (“Capital Growth”, the
“Company” or
“Global
Capacity”) was organized as a Florida corporation. Capital Growth
consists of five core-operating subsidiary entities from prior acquisitions
which are: 20/20 Technologies, Inc. (“20/20”), UK based,
Magenta netLogic, Ltd. (“Magenta”)2, CentrePath, Inc. (“CentrePath”), Global
Capacity Group, Inc. (“GCG”), and Global
Capacity Direct, LLC fka Vanco Direct USA, LLC (“VDUL”). 20/20,
Centrepath, and VDUL are Delaware limited liability companies and corporations,
and GCG is a Texas corporation.
2 Magenta
is not a debtor in these bankruptcy proceedings.
24
Global
Capacity Holdco, LLC, a Delaware limited liability company, is purely a
licensing entity, and FNS 2007, Inc., NEXVU Technologies, LLC, 20/20
Technologies I, LLC and Capital Growth Acquisition, Inc., which are all Delaware
limited liability companies and corporations, are not currently operating
entities.
Global
Capacity is a leading provider of telecommunication information and network
logistics solutions that enable clients to address the inefficiencies inherent
in data networks globally. The global market for data networks is
estimated at over $1 trillion annually, of which $200 billion is attributed to
the highly inefficient access market, which is plagued by market fragmentation,
regionalized rules and regulations, and a lack of transparency related to
pricing and supply. These circumstances create an environment where
clients pay disparate prices due to inefficient procurement practices and margin
stacking. Global Capacity addresses this market inefficiency by
utilizing its core intellectual property to drive transparency and automation
into the market.
The Company’s capabilities include:
|
·
|
Global
market intelligence of telecom supply and pricing data;
|
|
·
|
Automated
quotation management software;
|
|
·
|
Customized
access network pricing software;
|
|
·
|
Powerful
network optimization algorithms, tools and practices;
|
|
·
|
Robust
network engineering processes and expertise;
|
25
|
·
|
World-class
remote network management systems, processes, and expertise;
and
|
|
·
|
Strategically
deployed network aggregation pooling points.
|
The
Company’s goal is to become the leading global telecom information and logistics
company providing Network Solutions and Software & Optimization Solutions to
integrators, telecommunications companies, and enterprise
customers.
2.
|
Overview
of Solutions
|
The Company’s two business lines –
Software & Optimization and Network Solutions – leverage the Company’s core
intellectual property to drive transparency and automation into the market. The
Software & Optimization solutions primarily provide clients access to the
Company’s automated quotation management platform, Connectivity Lifecycle
Manager (“CLM”), whereas Network Solutions help
clients manage their networks for greater profitability.
(a) Software
& Optimization Solutions
Clients
license access to Global Capacity’s automated quotation management platform,
CLM, enabling them to generate accurate quotes for access circuits based on
tariffs appropriate for the particular service. CLM acts as an
electronic trading platform, allowing customers to match their demand against a
global catalog of pricing and supply data, creating a level of market
transparency not available elsewhere. CLM may be customized using a
customer’s specific infrastructure and contract data, creating an automated
mechanism to generate customer pricing, reducing back office costs and
accelerating sales. Optimization clients leverage the CLM platform,
along with proprietary network optimization tools, to assess existing
inventories of access networks, identifying opportunities to reduce cost through
both financial and physical network grooming. Realized savings for
clients are generally between 10% to 40% of their current
spend.
26
§
|
Accurate
real-time quotes
|
||
Quotation
Management
|
§
|
Automated
quotes based on tariff rules
|
|
|
§
|
Quotation workflow
management
|
|
|
|
||
§
|
Customized
pricing application
|
||
Custom
Pricing
|
§
|
Customer
location and contract data
|
|
|
§
|
Automated pricing based on business
rules
|
|
|
|
||
§
|
Data
cleansing and analysis
|
||
Optimization
Consulting
|
§
|
Anomaly
and overcharge analysis
|
|
§
|
Financial
grooming (re-rate and negotiation)
|
||
|
§
|
Physical grooming (migration, re-homing and
aggregation)
|
(b) Network
Solutions
Clients
utilize Global Capacity’s logistics expertise to implement access network
solutions that improve efficiency and reduce costs. One Marketplace,
the Company’s physical network trading platform, aggregates network capacity
from multiple suppliers at strategically deployed pooling points, using Global
Capacity switching equipment to efficiently deploy capacity against market
demand. One Marketplace reduces network costs for clients, while delivering the
potential for higher gross margins. Global Capacity’s Network Novation practice
offers outsourced access network operations, including pricing, procurement,
provisioning and network management. These solutions deliver lower
access network costs by aggregating customer demand, while also reducing client
SG&A associated with managing access network operations. Network
Solutions clients also leverage Global Capacity’s engineering and remote network
management services on a professional services basis, selectively deploying
these services against critical requirements.
27
§ Physical network
trading platform
§ Interconnections
with national, regional & local access providers
§ Automated access
to low cost alternatives
§ Efficient
distribution and management of spare capacity
|
||
Portfolio
Management
|
§ Outsourced
management of access networks
§ Procurement,
provisioning, operations, billing
§ Novation /
assignment of existing network contracts
§ Reduced
SG&A
|
|
Off-Net
Extension
|
§ Outsourced
management of access circuits
§ Procurement,
provisioning, operations, billing
§ Reduced
SG&A
|
|
Engineering
Services
|
§ Design,
engineering and building of complex networks
§ Fiber and network
testing
§ Network
augmentation
|
|
Remote
Management Services
|
§ Proactive
management
§ Monitor, detect
and resolve network issues
§ 24x7 network
operations
center
|
3. Debtors’
Capital Structure
(a) Senior
Secured Debt
On or
about November 19, 2008, the Debtors entered into that certain Term Loan and
Security Agreement with ACF CGS, L.L.C., as agent for one or more lenders as the
predecessor in interest to Pivotal Global Capacity, LLC (the “Senior Lien Lender),
pursuant to which the Debtors agreed to borrow $8.5 million from the Senior Lien
Lender, which amount could have been increased to up to $10.5 million (“Pivotal Loan”). As of
the Petition Date, the balance due on that debt was approximately $5.2
million.3 All
of the Debtors’ accounts receivable, accounts, and other types of Cash
Collateral (as defined in the Pivotal Loan documents) as well as all or
virtually all property of the Debtors’ estates collateralized the Pivotal
Loan.
3 Copies of
all prepetition loan documents are available for review at http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001116694&type=&dateb=&owner=exclude&start=40&count=40,
and more specifically at http://www.sec.gov/Archives/edgar/data/1116694/000114420408065743/0001144204-08-065743-index.htm.
28
On July
30, 2010, the Bankruptcy Court entered the Interim DIP Order (defined below),
permitting the Debtors to use debtor in possession financing to pay off the
Pivotal Loan. In accordance with the Interim DIP Order, the Debtors paid off the
Pivotal Loan. Pivotal asserts that it may be entitled to
indemnification and other rights, notwithstanding the satisfaction of the
Pivotal Loan, and did not consent to the use of its Cash Collateral absent the
grant of certain adequate protection of such Cash Collateral, as more fully set
forth in the Interim DIP Order.
(b) Pre-Petition
Debentures
In March
2008, November 2008, July 2009, and August 2009, the Debtors entered into
certain Securities Purchase Agreements and a Note Purchase Agreement
(collectively, the “Debenture
Agreements”) with several investors (the “Pre-Petition Debenture
Lenders”). As of June 30, 2010, the Debtors have outstanding indebtedness
of approximately the following amounts to the Pre-Petition Debenture Lenders:
(i) $17,967,197 to the holders of amended and restated debentures issued
in March 2008, net of unamortized OID of approximately $8,947,390; (ii)
$10,372,218 to the holders of debentures issued in November 2008, net of
unamortized OID of approximately $4,519,032; and (iii) $1,514,245 to the holders
of VPP debentures issued in July 2009, net of unamortized OID of approximately
$476,893; (iv) $8,221,577 to the holders of debentures issued in July and August
2009, net of unamortized OID of approximately $2,278,425. The Pre-Petition
Debenture Lenders are owed in excess of $38,000,000 in valid pre-petition
secured debt (net of OID). In accordance with the applicable
Pre-Petition Debenture Agreements, the applicable Pre-Petition Debenture Agent
has the right to take any action with respect to the Collateral (as defined in
the applicable Pre-Petition Debenture Agreements) on behalf of the Pre-Petition
Debenture Lenders, including, without limitation, the right to credit bid for
the Assets and accept the Plan Distributions on their behalf.
29
(c) Other
Debt
Prior to
the Petition Date, the Debtors owed approximately $4.0 million in general
unsecured notes, as well as approximately $17.0 million in unsecured debt to
utilities, vendors and suppliers in the ordinary course of business.
Additionally, the Debtors owed approximately $700,000 in Priority Tax Claims and
Priority Non-Tax Claims prior to the Petition Date.
B. EVENTS
LEADING TO THESE BANKRUPTCY CASES
The
Debtors entered Chapter 11 due largely to their complex capital structure, lack
of liquidity and inability to drive internal growth due to their capital
structure and lack of liquidity. Specifically, the Debtors filed for relief
under Chapter 11 in order to clean up their balance sheet and capital structure,
by converting existing debt to equity, as well as providing a mechanism to
address outstanding trade payables. The Debtors worked with their investors and
lenders to try to achieve these objectives outside of a formal restructuring
process. The parties, however, could not reach agreement on valuation and
structure issues. Accordingly, the parties agreed that a Chapter 11
proceeding would be the most effective way to address the Debtors’ balance sheet
and capital structure issues, while ensuring the business was fairly valued for
the benefit of all parties in interest.
C. SIGNIFICANT
POST-PETITION EVENTS
On July 23, 2010 (“Petition Date”), the
Debtors filed voluntary petitions for relief under Chapter 11 of the Bankruptcy
Code. Immediately after filing the voluntary petitions, the Debtors
filed a Motion for Joint
Administration of Cases [P-3]. The Court entered an order
[P-43] directing consolidation of the cases for procedural purposes and joint
administration.
1. First
Day Motions
On
July 23, 2010, the Debtors filed the following "first day" motions and pleadings
and the Bankruptcy Court granted the respective orders on such
motions:
30
(a) Motion
for Interim and Final Orders: (A) Prohibiting Utilities from Altering, Refusing
or Discontinuing Services to, or Discriminating Against, the Debtors on Account
of Prepetition Invoices; (B) Determining that the Utilities are Adequately
Assured of Future Payment; (C) Establishing Procedures for Determining Requests
for Additional Assurance; and (D) Permitting Utility Companies to Opt Out of the
Procedures Established Herein [P-5]; interim order granting same
[P-51];
(b) Motion
to (I) Approve Maintenance of Certain Prepetition Bank Accounts and Cash
Management System; (II) Continue Use of Existing Checks and Business Forms; and
(III) Continue Current Investment Policies [P-6]; order granting same
[P-45];
(c) Debtors’
Motion for Authority to Pay or Honor Prepetition Obligations to Certain Critical
Vendors [P-7]; order granting same [P-46];
(d) Motion
for an Order Under 11 U.S.C. §§105(a), 363, 507, and 1107, and 1108 (I)
Authorizing Debtors to (A) Pay Prepetition Wages and Salaries, and (B) Pay
Prepetition Benefits and to Continue Benefit Programs in the Ordinary Course and
(III) Directing Banks to Honor Prepetition Checks for Payment of Prepetition
Employee Obligations [P-8]; order granting same [P-47];
(e) Motion
for an Order Authorizing the Debtors to Pay Prepetition Sales, Use, Property and
Other Taxes and Related Obligations [P-9]; order granting same
[P-48];
(f)
Motion of the Debtors Pursuant to Section 105(a) of the
Bankruptcy Code for Order (1) Authorizing the Debtors to Continue to Operate
Under and Provide Services Pursuant to its Service Order with Excel
Communications; and (2) Directing Excel Communications and Iron Mountain
Intellectual Property Management, Inc. to Operate Under the Service Order
Pursuant to Section 105(a) of the Bankruptcy Code and Not Take Any Action in
Violation of the Automatic Stay [P-11]; interim order granting same
[P-52];
(g) Motion
for Order Under 11 U.S.C. §§ 105, 363, 364(c)(1) and (2), and 364(e),
Fed.R.Bankr.P. 2002, 4001, and 9014: (I) Authorizing Debtors to Obtain
Postpetition Financing on Superpriority and Secured Basis, (II) Permitting the
Use of Cash Collateral, (III) Granting Interim Relief, And (IV) Scheduling a
Final Hearing Under Fed.R.Bankr.P. [P-22]; interim order granting same
[P-67].
31
2. Employment
of Professionals
(a) Debtors’
Counsel
(i)
Heller, Draper, Hayden,
Patrick & Horn, L.LC.
On August
5, 2010, the Debtors filed an Application by the Debtors for Entry
of an Order Authorizing the Employment and Retention of Douglas S. Draper and
the Law Firm of Heller, Draper, Hayden, Patrick & Horn, L.LC. (the
“Heller Draper
Application”) [P-82], seeking the employment of Heller, Draper, Hayden,
Patrick & Horn, L.LC., as bankruptcy counsel for the Debtors. The
hearing on the Heller Draper Application is set for August 24,
2010.
(ii) Womble
Carlyle Sandridge & Rice, PLLC
On August
5, 2010, the Debtors filed an Application by the Debtors for Entry
of an Order Authorizing the Employment and Retention of Frank Manaco and the Law
Firm of Womble Carlyle Sandridge & Rice, PLLC (the “Womble Application”)
[P-84], seeking the employment of Womble Carlyle Sandridge & Rice, PLLC., as
bankruptcy co-counsel for the Debtors. The hearing on the Womble
Application is set for August 24, 2010.
(iii) Lance
J. M. Steinhart, PC
On August
6, 2010, the Debtors filed an Application by the Debtors for Entry
of an Order Authorizing the Employment and Retention of Lance J. M. Steinhart
and the law firm of Lance J. M. Steinhart, PC (the “Steinhart
Application”) [P-92], seeking the
employment of Lance J. M. Steinhart, PC, as Debtors’ special regulatory
counsel. The hearing on the Steinhart Application is set for August
24, 2010.
(iv) Shefsky
& Froelich
On August
6, 2010, the Debtors filed an Application by the Debtors for Entry
of an Order Authorizing the Employment and Retention of Mitchell D. Goldsmith
and the law firm of Shefsky & Froelich as Special Counsel for Debtors
Pursuant to 11 U.S.C. §§327(e) and 329 (the “Shefsky
Application”) [P-91], seeking the
employment of Shefsky & Froelich, as Debtors’ special
counsel. The hearing on the Shefsky Application is set for August 24,
2010.
32
(v) Akerman
Senterfitt LLP
On August
6, 2010, the Debtors filed an Application by the Debtors for Entry
of an Order Authorizing the Employment and Retention of Akerman Senterfitt LLP
as Special Counsel to the Board of Directors for Capital Growth Systems, Inc.
Pursuant to 11 U.S.C. §§327(e) and 329 (the “Akerman
Application”) [P-93], seeking the
employment of Akerman Senterfitt LLP, as special counsel to the Board of
Directors for Capital Growth Systems, Inc. The hearing on the Akerman
Application is set for August 24, 2010.
(b) Kurtzman
Carson Consultants
On the
Petition Date, the Debtors filed an Application of Debtors for Under 28
U.S.C. §156(c) and Bankruptcy Rule 2002(f) and Local Rule 2002-1(f) Approving
the Agreement with Kurtzman Carson Consultants LLC and Appointing Kurtzman
Carson Consultants, LLC as Claims, Noticing, Soliciting and Balloting Agent
(“KCC
Application”) [P-4], seeking the
authority to appoint Kurtzman Carson Consultants, LLC, as the Debtors claims,
noticing, soliciting, and balloting agent (the “Voting Agent”). On
July 27, 2010, the Bankruptcy Court entered an order granting the KCC
Application [P-44].
(c) Capstone
Investments
On August
5, 2010, the Debtors filed an Application of Debtors for Entry of
an Order Authorizing Employment and Retention of Capstone Investments as
Financial Advisor for Debtors Pursuant to 11 U.S.C. §327(e) and 328(a)
(the “Capstone
Application”) [P-83] seeking the employment of Capstone Investments
(“Capstone”),
as financial advisor and investment banker for the Debtors. The
hearing on the Capstone Application is set for August 24, 2010.
33
3.
DIP Financing/Cash Collateral
On the
Petition Date, the Debtors filed Motion for Order Under 11 U.S.C. §§
105, 363, 364(c)(1) and (2), and 364(e), Fed.R.Bankr.P. 2002, 4001, and 9014:
(I) Authorizing Debtors to Obtain Postpetition Financing on Superpriority and
Secured Basis, (II) Permitting the Use of Cash Collateral, (III) Granting
Interim Relief, And (IV) Scheduling a Final Hearing Under Fed.R.Bankr.P.
4001(c) [P-22] (“DIP Motion”), seeking
the Bankruptcy Court’s authority (1) to enter into debtor in possession
financing with Downtown CP-CGSY, LLC (“Downtown Capital”)
and with certain Pre-Petition Debenture Lenders (“DIP Debenture
Lenders” and collectively with Downtown Capital, the “DIP Lenders”) in the
total aggregate amount of $10,250,000 (“DIP Financing”), and
(2) to use cash collateral. The Debtors sought approval of DIP
Financing and the use of cash collateral in order to assist in their
restructuring efforts, to pay critical vendors and utility deposits, to prevent
an immediate shutdown, and to pay off the pre-petition secured indebtedness of
the Senior Lien Lender
The DIP
Motion was set for hearing on July 27, 2010, and the Court entered an Interim Order Granting Emergency
Motion for an Order Under 11 U.S.C. §§ 105, 363, 364(c)(1) and (2), and 364(e),
Fed.R.Bankr.P. 2002, 4001, and 9014: (I) Authorizing Debtors to Obtain
Postpetition Financing on Superpriority and Secured Basis, (II) Permitting the
Use of Cash Collateral, (III) Granting Interim Relief, And (IV) Scheduling a
Final Hearing Under Fed.R.Bankr.P. 4001(c) (“Interim DIP Order”)
[P-67].
Pursuant
to the Interim DIP Order, the Bankruptcy Court authorized the Debtors, on an
interim basis, to enter into debtor in possession financing with the DIP Lenders
in the amount of $9,250,000. The final hearing on the DIP Motion is
scheduled for August 13, 2010.
Prior to
the Confirmation Date, any Pre-Petition Debenture Lender that is not already a
Tranche B Lender may participate in the DIP Facility as a Tranche B Lender up to
such Pre-Petition Debenture Lender’s Pro Rata share of the Pre-Petition
Debenture Obligations.
34
|
4.
|
Schedules,
Statement of Financial Affairs, Meeting of Creditors, Appointment of
Creditors’ Committee, and Pending
Litigation
|
On August
6, 2010, the Debtors filed a Motion of the Debtors Pursuant to
Rule 1007(c) of the Federal Rules of Bankruptcy Procedure for an Extension of
Time to File Schedules of Assets and Liabilities, Schedules of Current Income
and Expenditures, Schedules of Executory Contracts and Unexpired Leases, and
Statements of Financial Affairs (“Extension Motion”)
[P-94], seeking entry of an order extending the fourteen (14) day period to file
their schedules and statements of financial affairs for an additional thirty
(30) days. The hearing on the Extension Motion is set for August 24,
2010.
The
meeting of creditors pursuant to Section 341 of the Bankruptcy Code is scheduled
for August 31, 2010. On August 6, 2010, an unsecured creditors’
committee was appointed in these Chapter 11 Cases [P-88].
Additionally,
the Debtors are currently parties to the following lawsuits:
|
(a)
|
Southern California Edison
Company v. Capital Growth Systems, Inc., Superior Court of
California, County of Los Angeles, Northeast District, Case Number: GC
044842.
|
Southern
California Edison Company (“SCE”) filed a lawsuit
against Capital Growth Systems, Inc. based upon breach of contract and breach of
implied covenant of good fair and fair dealing. On July 14, 2010, SCE filed a
request for entry of a default judgment against Capital Growth Systems,
Inc.
|
(b)
|
Pigat v. International
Business Machines Corp., OAO Inc., OAO Technology Solutions, Inc.,
SBC Global Services, Inc., FNS 2007, Inc., Supreme Court of New
York, Case Number: 22248/06T
|
Pigat involves a personal
injury lawsuit pursuant to which FNS 2007, Inc. has been named a Third Party
Defendant. FNS 2007, Inc. believes that if it is found liable, its liability
insurance will cover any damages imposed upon it.
35
5.
Motion to Sell
Prior to filing these Chapter 11
Cases, the Debtors, with the assistance of Capstone and in consultation with
certain of the prepetition lenders pursued a range of options to address the
Debtors’ concerns about their ability to service their debt going forward,
including new financing, refinancing and the sale of certain or all of the
Debtors’ assets or business. After exploring the strategic alternatives
available to them, the Debtors have determined that the best way at this time to
maximize the value of their assets for the benefit of their creditors, is to
seek a sale of their assets through a sale under section 363 of the Bankruptcy
Code as part of a plan confirmation.
Accordingly, on August 9, 2010, the
Debtors filed Debtors’ Motion
for Entry of (I) An Order Approving and Authorizing (A) Bidding Procedures in
Connection with the Sale of Substantially all the Assets of Debtors, (B)
Stalking Horse Bid Protections, (C) The Form and Manner of Notice of the Sale
Hearing and (D) Other Related Relief, and (II) An Order Approving and
Authorizing (A) The Sale of Substantially all of the Assets of the Debtors Free
and Clear of Liens, Claims, Interests and Encumbrances, (B) The Assumption and
Assignment of Executory Contracts and Unexpired Leases as Part of the Sale and
(C) Other Related Relief (the “Sale Motion”),
seeking the Bankruptcy Court’s authority (1) to approve certain bidding
procedures and (2) to authorize and approve (a) the sale of substantially all of
the Debtors’ assets free and clear of all liens, claims, interests and
encumbrances and (b) the assumption and assignment of certain executory
contracts and unexpired leases.
Pursuant
to the Sale Motion, the Debtors shall enter into an Asset Purchase Agreement
(“APA”) with
Newco, which shall serve as the stalking horse bidder at the auction on the sale
of the Acquired Assets (defined in the Sale Motion). Newco is a newly formed
company organized by the Pre-Petition Debenture Lenders to acquire substantially
all of the Assets of the Debtors.
36
Prior to embarking on a “sale” plan
of reorganization the Debtors (a) evaluated potential alternatives, (b) marketed
the transaction aggressively, (c) evaluated and analyzed multiple rounds of
competing proposals, and (d) presented all of the foregoing to the members of
the board (who, in conjunction with advice from experienced professionals,
discharged their fiduciary duties, exercised sound and appropriate business
judgment and determined to pursue the sale on the terms of the proposed APA,
subject to competitive bidding sanctioned by the Court).
Moreover,
even as the Debtors move forward with the sale, Capstone will continue to market
the transaction and solicit other offers for the Acquired Assets consistent with
the Bidding Procedures and subject to the APA, including, for example, by
contacting previously solicited parties, providing acceptable bidders with data
room access and requested information and otherwise assisting the Debtors with
all efforts to increase transaction value. In this way, the number of bidders
that are eligible to participate in a competitive Auction process will be
maximized, or, if no Auction is held because no Auction is necessary, the APA
purchase price will, conclusively, be fair value. A hearing on the Sale Motion
has not yet been scheduled.
D. PLAN
SUPPORT AGREEMENT
In
connection with the DIP Financing, the Debtors and the DIP Debenture Lenders
negotiated a Plan Support and Restructuring Agreement (“Plan Support
Agreement”), which set forth a clear plan for the Debtors’ exit out of
bankruptcy, i.e. for a capitalized and healthy post-confirmation entity.
Pursuant to the Plan Support Agreement, the parties agreed to the terms of
a pre-negotiated consensual plan of reorganization to be filed with the
Bankruptcy Court, and have filed the Plan in accordance with the Plan Support
Agreement. Further, to expedite and ensure the implementation of the Debtors’
restructuring, each of the DIP Debenture Lenders agreed to commit, on the terms
and subject to the conditions of the Plan Support Agreement and applicable law,
if and when solicited in accordance with applicable bankruptcy law, to accept
the plan of reorganization and support its confirmation.
37
IV. THE
PLAN
A. OVERVIEW
OF THE PLAN.
THE FOLLOWING IS A SUMMARY OF SOME OF
THE SIGNIFICANT ELEMENTS OF THE PLAN. THIS DISCLOSURE STATEMENT IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO THE MORE DETAILED INFORMATION SET FORTH IN THE PLAN
AND THE EXHIBITS THERETO.
The Plan
classifies Claims and Interests separately in accordance with the Bankruptcy
Code and provides different treatment for different Classes of Claims and
Interests. Claims and Interests shall be included in a particular Class only to
the extent such Claims or Interests qualify for inclusion within such Class. The
Plan separates the various Claims and Interests (other than those that do not
need to be classified) into ten (10) separate Classes. These Classes take into
account the differing nature and priority of Claims against, and Interests in,
the Debtors. Unless otherwise indicated, the characteristics and amounts of the
Claims or Interests in the following Classes are based on the books and records
of the Debtors. The classification and the treatment of the
Claims and Interests are set forth in Article 2 set forth above.
Only
holders of Allowed Claims — Claims that are not in dispute, contingent, or
unliquidated in amount and are not subject to an objection — are entitled to
receive distributions under the Plan. Until a Disputed Claim or Disputed
Interest becomes Allowed, no distributions of Cash or otherwise will be
made. The Debtors believe that they will be able to perform their
obligations under the Plan. The Debtors also believe that the Plan permits fair
and equitable recoveries.
38
The
Confirmation Date will be the date that the Confirmation Order is entered by the
Clerk of the Bankruptcy Court. The Effective Date means the first Business Day
on which all conditions to the Effective Date set forth in Article 9.2 of the
Plan have been satisfied or waived, (or will be satisfied contemporaneously with
or immediately upon the occurrence of the Effective Date) and no stay of the
effectiveness of the Confirmation Order is in effect. The Debtors
anticipate that the Effective Date will occur on or prior to November 25, 2010.
Resolution of any challenges to the Plan may take time and, therefore, the
actual Effective Date cannot be predicted with certainty.
Other
than as specifically provided in the Plan, the treatment under the Plan of each
Claim and Interest will be in full satisfaction, settlement, release and
discharge of all Claims or Interests. The Liquidating Debtors will make all
payments and other distributions to be made under the Plan unless otherwise
specified, other than distributions to the holders of Allowed Mission Critical
Vendor Claims, which are being assumed and paid by the Purchaser in accordance
with the APA.
In accordance with section 1123(a)(1)
of the Bankruptcy Code, Administrative Expense Claims, Fee Claims, U.S. Trustee
Fees, DIP Claims, Priority Tax Claims and Priority Non-Tax Claims have not been
classified, and the holders thereof are not entitled to vote on the
Plan. Claims and Interests have been placed in Classes which are set
forth in Article III of the Plan. A Claim or Interest is placed in a
particular Class only to the extent that the Claim or Interest falls within the
description of that Class and is classified in other Classes to the extent that
any portion of the Claim or Interest falls within the description of such other
Classes.
A Claim
or Interest also is placed in a particular Class for all purposes, including
voting, confirmation and distribution under the Plan and under sections 1122 and
1123(a)(1) of the Bankruptcy Code. However, a Claim or Interest is placed in a
particular Class for the purpose of receiving distributions pursuant to the Plan
only to the extent that such Claim or Interest is an Allowed Claim or Allowed
Interest in that Class and such Claim or Interest has not been paid, released or
otherwise settled prior to the Effective Date.
39
B. MEANS
FOR IMPLEMENTATION OF PLAN
1.
Sale of Assets/Reorganization of Debtors
Section
5.11 of the Plan provides:
(a) Assumption/Assignment. To
the extent not previously transferred under a prior Sale Order, the Debtors
shall be authorized on the Effective Date to, among other things, sell, assume,
assign and/or transfer the Acquired Assets pursuant to sections 105(a), 363,
365, 1123(b)(4), 1129 and 1146(a) of the Bankruptcy Code under the terms and
conditions of the Plan to the Purchaser, and such sale or transfer shall be free
and clear of any and all Liens, Interests, Claims, charges and encumbrances.
Except as otherwise expressly provided in the Plan, the Debtors are authorized
to take any and all actions necessary to consummate the Sale. The actions
necessary to effect the Sale may include: (i) the execution and delivery of
appropriate instruments of transfer, assignment, assumption or delegation of any
asset, property, right, liability, duty or obligation on terms consistent with
the terms of the Plan and having such other terms to which the Debtors and the
Purchaser may agree, and (ii) all other actions that the Debtors and the
Purchaser determine to be necessary or appropriate in connection with such
transactions, including making such filings or recordings that may be required
by or appropriate under applicable state law.
(b) Plan
Structure. The proposed Sale will result in either (i) the transfer
of the Acquired Assets to Purchaser pursuant to a sale under section 363 of the
Bankruptcy Code; or, (ii) if a Reorganization Election is made, the issuance by
the Debtors to Purchaser of 100% of the equity interest of the Reorganized
Debtors in consideration of the Sale Proceeds. Either scenario will
provide for substantially similar treatment to holders of Claims and Interests
as outlined above, unless otherwise agreed to or as determined by the Bankruptcy
Court. The Debtors and Purchaser will work together to structure the
proposed Sale in the form ultimately determined by Purchaser.
40
(c) Restructuring Options. If and
as directed by the Purchaser and consistent with the Plan, to implement the
Plan, the Purchaser and the applicable Debtors or Reorganized Debtors, as the
case may be, may enter into such transactions and may take such actions as may
be necessary or appropriate to effect a corporate restructuring of their
respective businesses, to otherwise simplify the overall corporate structure of
the Debtors or Reorganized Debtors, as the case may be, or to reincorporate
certain of the Debtors under the laws of jurisdictions other than the laws under
which the applicable Debtors are presently incorporated. Such restructuring may
include a debt-for-equity exchange, one or more mergers, consolidations,
restructurings, dispositions, liquidations, dissolutions or reincorporations, as
may be determined by the Purchaser to be necessary or appropriate. The actions
to effect such restructuring may include, at the Purchaser’s option (i) the
execution and delivery of appropriate agreements or other documents of merger,
consolidation, restructuring, disposition, liquidation or dissolution containing
terms that are consistent with the terms of the Plan and that satisfy the
requirements of applicable state law and such other terms to which the
applicable entities may agree, (ii) the execution and delivery of appropriate
instruments of transfer, assignment, assumption or delegation of any asset,
property, right, liability, duty or obligation on terms consistent with the
terms of the Plan and having such other terms to which the applicable entities
may agree, (iii) the filing of appropriate certificates or articles of merger,
consolidation or dissolution pursuant to applicable state law and (iv) all other
actions that the applicable entities determine to be necessary or appropriate,
including making filings or recordings that may be required by applicable state
law in connection with such transactions.
(d) Preservation
of Tax Attributes. In the event of a restructuring, as set forth above in
Article 5.1(c), Purchaser shall have the right, in accordance with applicable
non-bankruptcy law, to structure the Sale in a tax efficient manner, so as to
preserve and maximize (to the extent feasible) the Debtors’ historical tax
attributes or, in lieu thereof, to achieve a step-up in basis of the Acquired
Assets. As directed by and in consultation with Purchaser, the
Debtors shall take any and all actions reasonably necessary to achieve the
foregoing.
41
2.
Vesting of
Assets
Section
5.2 of the Plan provides:
(a) Assets
of the Debtors. To the extent not previously transferred under a prior Sale
Order or an APA, on and after the Effective Date, pursuant to sections 1141(b)
and (c) of the Bankruptcy Code, and except as otherwise provided in this Plan or
in the Confirmation Order, all Acquired Assets of the Debtors’ Estates,
including all claims, rights and Retained Causes of Action other than the
Debtors’ Retained Causes of Action, shall vest in the Purchaser free and clear
of all Claims, Liens, charges, other encumbrances and Interests. On
the Effective Date, the Debtors’ Retained Causes of Action shall vest in the
Liquidating Debtors or Reorganized Debtors, as applicable.
(b) Avoidance
Actions. Any Unreleased Avoidance Actions shall vest in the Purchaser
on the Effective Date to the extent provided in the APA and, to the extent not
so provided in the APA, in the Liquidating Debtors or Reorganized Debtors, as
applicable.4 Upon and after the Effective Date, the Purchaser, or the
Liquidating Debtors or Reorganized Debtors, as applicable, shall have the
authority to analyze, continue, commence, prosecute, settle and realize upon the
Unreleased Avoidance Actions in its discretion without any requirement of notice
or Bankruptcy Court approval, free of any restrictions of the Bankruptcy Code or
the Bankruptcy Rules, other than any restrictions expressly imposed by the Plan
or the Confirmation Order. To the extent necessary, following the Effective
Date, the Purchaser, or the Liquidating Debtors or Reorganized Debtors, as
applicable, shall be deemed to be a judicial substitute for the Debtors as the
party-in-interest with respect to such Unreleased Avoidance Actions and the
representative of the Estates with respect to such Unreleased Avoidance Actions
pursuant to section 1123(b)(3)(B).
4 The
Debtors are generally only retaining Avoidance Actions against persons, firms or
entities that are not customers, business partners, or ongoing relationships of
the Debtors’ business, including, but not limited to, those who are Mission
Critical Vendors.
42
(c) Subsidiary
Debtors’ Interests. In the event of a Reorganization Election, the
Subsidiary Debtors’ Interests in any Reorganized Debtor may vest fully in such
Reorganized Debtor or Debtors corresponding to the Debtor or Debtors that held
such Debtor’s ownership Interests prior to the Effective Date, in each case,
free and clear of all Liens, Claims, encumbrances and other liabilities, without
express or implied limitation, Claims against or Interests in such
Debtors.
3.
Exit Capital Requirements Plan
Funding.
Except as
otherwise provided in the Plan or the APA, the Exit Capital Requirements Funding
shall be used by the Liquidating Debtors: (i) to pay in full Allowed
Administrative Expense Claims, Tranche A DIP Facility Claims, Tranche B DIP
Facility Claims (to the extent applicable), Allowed Fee Claims, U.S. Trustee
Fees, Allowed Priority Tax Claims, and Allowed Priority Non-Tax Claims, and (ii)
to provide a sufficient reserve for the payment of Wind Down
Costs. For the avoidance of doubt and notwithstanding anything to the
contrary herein, unless a Reorganization Election is made, Newco shall only be
required to fund the Exit Capital Funding amount and other Assumed Liabilities
set forth in Schedule 2 of the Plan Support Agreement and Wind Down Costs set
forth in the Wind Down Budget.
43
4. Continued
Corporate Existence and Authority to Implement.
Section
5.4 of the Plan provides:
(a) From
and after the Effective Date, each of the Liquidating Debtors shall be managed
and administered by the Plan Administrator, who shall be appointed the sole
manager of each of the Liquidating Debtors and shall have full authority to
administer the provisions of the Plan. The Liquidating Debtors may employ one or
more Persons to assist in performing duties under the Plan. On and after the
Effective Date, the Liquidating Debtors may effectuate the Wind Down of the
Estates, including (i) payment of all Wind Down Costs, (ii) resolving Disputed
Claims, if any, and (iii) effectuating distributions to holders of Allowed
Claims and Allowed Interests; (iv) otherwise implementing the Plan, the Wind
Down and the closing of the Bankruptcy Cases; and (v) undertaking such other
matters relating to implementation of the Plan as are deemed necessary and
appropriate by the Liquidating Debtors. The Liquidating Debtors may pay the
charges that they incur on or after the Effective Date for Professional Persons’
fees, disbursements, expenses or related support services without application to
the Bankruptcy Court.
(b) The
Liquidating Debtors will continue to exist after the Effective Date to the
extent needed to operate the Non-Transferred Assets in accordance with the
Management Agreement subsequent to closing on the Sale until such
Non-Transferred Assets are transferred to Purchaser.
(c) Notwithstanding
any transfer of Causes of Action to the Purchaser, the Liquidating Debtors shall
retain the right to assert such Causes of Action solely for the purpose of
asserting defenses against Claims which have been or are asserted against the
Debtors, provided, however, the Liquidating Debtors may only object to Mission
Critical Vendor Claims or Claims that are Assumed Liabilities if and as directed
by Purchaser.
44
(d) Except
as otherwise provided in the Plan, the Liquidating Debtors will continue to
exist after the Effective Date as separate corporate entities, in accordance
with the applicable laws of the respective jurisdictions in which they are
incorporated or organized, for the purposes of satisfying their obligations
under the Plan, including making distributions as required under the Plan and
effectuating the Wind Down. Except as otherwise directed by the Purchaser
pursuant to Article 5.1(c), on or after the Effective Date, the Liquidating
Debtors, in their sole and exclusive discretion, may take such action as
permitted by applicable law as such Liquidating Debtors may determine is
reasonable and appropriate, including, but not limited to, causing: (i) a
Liquidating Debtor to be merged into another Liquidating Debtor; (ii) a
Liquidating Debtor to be dissolved; (iii) the legal name of a Liquidating Debtor
to be changed; or (iv) the closing of a Liquidating Debtor’s case after the
Final Distribution Date.
5.
Plan
Administrator.
Section
5.5 of the Plan provides:
(a) Appointment.
The Debtors and the Purchaser shall jointly designate a person, who will serve
as the Plan Administrator; provided, however, that the Plan Administrator shall
be subject to removal by the Bankruptcy Court for cause shown at any
time.
(b) Immunity. The
Plan Administrator shall not be liable for any action it takes or omits to take
that it believes in good faith to be authorized or within its rights or powers
unless it is ultimately and finally determined by a court of competent
jurisdiction that such action or inaction was the result of fraud, gross
negligence or willful misconduct.
(c) Resignation,
Death or Removal. The Plan Administrator may be removed by the Bankruptcy Court
upon application for good cause shown. In the event of the resignation or
removal, liquidation, dissolution, death or incapacity of the Plan
Administrator, the Liquidating Debtors shall designate another person to become
Plan Administrator and thereupon the successor Plan Administrator, without any
further act, shall have all of the rights, powers, duties and obligations of its
predecessor.
45
(d) Authority
of Plan Administrator. The Plan Administrator shall have the authority on behalf
of the Liquidating Debtors to: (i) effect all actions and execute all
agreements, instruments, and other documents necessary to perform the
Liquidating Debtors’ duties under the Plan; (ii) make all applicable
distributions or payments contemplated hereby; (iii) employ professionals to
represent the Liquidating Debtors with respect to the Liquidating Debtors’
responsibilities, and (iv) exercise such other powers as may be vested in the
Liquidating Debtors by order of the Bankruptcy Court (including any order issued
after the Effective Date), pursuant to the Plan, or as deemed by the Plan
Administrator to be necessary and proper to implement the provisions
hereof.
(e) Expenses
Incurred on or After the Effective Date. Except as otherwise provided in the
Plan, after consultation with and agreement of Purchaser, the amount of any
reasonable fees and expenses incurred by the Plan Administrator on or after the
Effective Date (including, without limitation, taxes) and any reasonable
compensation and expense reimbursement claims (including, without limitation,
reasonable attorney and other professional fees and expenses and reasonable
compensation and reimbursement of expenses to the Plan Administrator) of the
Liquidating Debtors shall constitute Wind Down Costs and shall be paid in Cash
from proceeds available for such expenses pursuant to the Plan without notice or
hearing or any order of the Bankruptcy Court.
6.
Wind Down of the Debtors’
Estates.
Section
5.6 of the Plan provides:
(a) The
Plan Administrator shall oversee the Liquidating Debtors’ Wind Down and shall
cause the Liquidating Debtors to make distributions to, and otherwise hold all
property of the Liquidating Debtors for the benefit of, holders of Allowed
Claims and Allowed Interests consistent and in accordance with the Plan and the
Confirmation Order. The Liquidating Debtors (including the Plan Administrator)
shall not be required to post a bond in favor of the United
States.
46
(b) Except
as otherwise provided in the Plan, the Plan Administrator shall have the power
and authority to perform the following acts on behalf of the Liquidating
Debtors, in addition to any powers granted by applicable non-bankruptcy law or
conferred by any other provision of the Plan or orders of the Bankruptcy Court:
(i) take all steps and execute all instruments and documents necessary to make
distributions to holders of Allowed Claims, the appropriate Pre-Petition
Debenture Agent and the Tranche B Agent, as applicable; (ii) object to Claims as
provided in the Plan and prosecute such objections; (iii) resolve, compromise
and/or settle any objections to the amount, validity, priority, treatment,
allowance or priority of Claims, Administrative Expenses, or Interests; (iv)
comply with the Plan and the obligations hereunder; (v) if necessary, employ,
retain, or replace professionals to represent the Liquidating Debtors with
respect to their responsibilities; (vi) establish, replenish or release reserves
as provided in the Plan, as applicable; (vii) take all actions necessary or
appropriate to enforce the Debtors’ or Liquidating Debtors’ rights under the
Auction Sale Order or any Sale Order, and any related document and to fulfill,
comply with or otherwise satisfy the Debtors’ or Liquidating Debtors’ covenants,
agreements and obligations under any APA and any related document; (viii) make
all determinations on behalf of the Debtors or Liquidating Debtors under any
APA; (ix) prepare and file applicable tax returns for any of the Debtors or
Liquidating Debtors; (x) deposit funds of the Liquidating Debtors, draw checks
and make disbursements consistent with the terms of the Plan; (xi) purchase or
continue insurance protecting the Debtors, the Liquidating Debtors, Plan
Administrator and the property of the Liquidating Debtors; (xii) seek entry of a
final decree in any of the Bankruptcy Cases at the appropriate time; prosecute,
resolve, compromise and/or settle any litigation; (xiii) abandon in any
commercially reasonable manner, including abandonment or donation to a
charitable organization (as such term is described in Internal Revenue Code
section 501(c)(3) (whose contributions are deductible under Internal Revenue
Code section 170)) of the Plan Administrator’s choice, any assets that are of no
material benefit, including distributable Cash hereunder; and (xiv) take such
other action as the Plan Administrator may determine to be necessary or
desirable to carry out the purpose of the Plan.
47
(c) Except
as otherwise provided in an executed Management Agreement, following the
Effective Date, the Liquidating Debtors shall not engage in any business
activities or take any actions except those necessary in the judgment of the
Liquidating Debtors to effectuate the Plan, the Wind Down and the compliance
with any obligations under any APA or Sale Order. On and after the Effective
Date, the Liquidating Debtors may take such action and settle and compromise
Claims or Interests without supervision or approval by the Bankruptcy Court and
free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules, other
than any restrictions expressly imposed by the Plan or the Confirmation
Order.
7.
Credit Agreements, Existing Securities and
Agreements.
Section
5.7 of the Plan provides that except as otherwise provided in the Plan, to the
extent not previously canceled and discharged under a prior Sale Order, on the
Effective Date, all agreements, instruments, and other documents evidencing any
Claim against or Interest in a Debtor (other than any Subsidiary Debtors’
Interests) and any rights of any holder in respect thereof, including any
security interests or Liens in Assets of the Debtors, shall be deemed,
discharged and of no force or effect against the Debtors, the Liquidating
Debtors, the Assets and the Purchaser. The holders of or parties to such
instruments, securities and other documentation (other than any Subsidiary
Debtors’ Interests) will have no rights arising from or relating to such
instruments, securities and other documentation against the Debtors, Liquidating
Debtors, Purchaser or the Assets, except the rights expressly provided for in
the Plan, but shall reserve any and all rights arising therein against all other
Persons, unless specifically released under the Plan.
48
8. Assumed
Liabilities.
Unless
otherwise provided in the Plan, any order of the Bankruptcy Court, or any APA,
to the extent not previously accomplished under a prior Sale Order, on the
Effective Date, the Purchaser shall be responsible for payment and satisfaction
of all Assumed Liabilities. All Persons holding Claims and Interests arising out
of or concerning any Assumed Liability shall be forever barred, estopped and
permanently enjoined from asserting against the Debtors, Liquidating Debtors or
the Plan Administrator or any of their property, such Persons’ Claims or
Interests (as applicable) arising out of or concerning such Assumed
Liabilities. For the avoidance of doubt and notwithstanding anything
to the contrary herein, unless a Reorganization Election is made, Newco shall
only be required to fund the Exit Capital Funding amount and other Assumed
Liabilities set forth in Schedule 2 of the Plan Support Agreement and Wind Down
Costs set forth in the Wind Down Budget.
9.
Cancellation of Certain Existing Security
Interests.
Section
5.9 of the Plan provides that to the extent not previously accomplished under a
prior Sale Order, upon satisfaction of an Allowed Secured Claim in accordance
with the provisions of the Plan, all Liens and Encumbrances securing such
Allowed Secured Claims shall be automatically cancelled and released and shall
be of no effect whatsoever against the Assets, and, without limiting the
foregoing, at the request of the Liquidating Debtors or the Purchaser, the
holders of any Allowed Secured Claims in Classes 1, 2, 3, 4 and 5 shall execute
and deliver to the Purchaser any termination statements, instruments of
satisfaction, or releases of all security interests with respect to their
Secured Claims that may be reasonably required in order to terminate any related
financing statements, mortgages, mechanic’s liens, or lis pendens. Upon
satisfaction of the Secured Claims in Classes 1, 2, 3, 4, and 5 pursuant to the
terms of the Plan, to the extent deemed necessary or appropriate by the
Purchaser, the Liquidating Debtors shall have the authority on behalf of and in
the name of the holders of the Secured Claims in Classes 1, 2, 3, 4, and 5 to
execute, deliver and file documents to terminate any related financing
statements, mortgages, mechanic’s liens, or lis pendens.
49
10. Managers,
Officers and any Boards of Directors.
Section
5.10 of the Plan provides:
(a) Officers
and Managers. The managers and any officers of the Debtors immediately prior to
the Effective Date, in their capacities as such, shall be deemed removed from
such positions as of the Effective Date.
(b) Boards.
The members of any board of directors or board of managers of each Debtor prior
to the Effective Date, in their capacities as such, shall have no continuing
authority with respect to the Liquidating Debtors on or after the Effective Date
and each such member will be deemed to have resigned on the Effective
Date.
(c) Plan
Administrator as Sole Manager, Officer and Director. The Plan
Administrator shall be the sole manager, officer and sole member of
any board of directors and/ or board of managers of each of the Liquidating
Debtors from and following the Effective Date without the need for board or
shareholder or membership vote and without any requirement of further
action by any members, stockholders, managers, officers, or boards
of directors or managers of the Debtors and shall have all rights of
a manager, officer and director of the Liquidating Debtors under applicable
non-bankruptcy law, and all rights conferred under the Confirmation Order and
the Plan.
11. Corporate Action.
Section
5.11 of the Plan provides:
(a) Entry
of the Confirmation Order shall establish conclusive corporate and other
authority (and evidence of such corporate and other authority) required for each
of the Debtors or Liquidating Debtors, as applicable, to undertake any and all
acts and actions required to implement or contemplated by the Plan (including,
without limitation, the execution and delivery of any APA), and such acts and
actions shall be deemed to have occurred and shall be in effect pursuant to
applicable non-bankruptcy law and the Bankruptcy Code, without the need for
board or shareholder or membership vote and without any requirement
of further action by any members, stockholders, managers, officers, or boards
of directors or managers of the Debtors.
50
(b) On
the Effective Date, the Liquidating Debtors (through the Plan Administrator) are
authorized to execute and/or deliver the agreements, documents and instruments
contemplated by the Plan, and any APA and any Plan Documents, and any schedules,
exhibits or other documents attached thereto or contemplated thereby, in the
name and on behalf of the Debtors and the Liquidating Debtors.
(c) Upon
entry of a final decree in each Bankruptcy Case, unless otherwise reorganized in
accordance with Article V of the Plan or not previously dissolved, the
applicable Liquidating Debtor shall be deemed automatically dissolved and wound
up without any further action or formality which might otherwise be required
under applicable non-bankruptcy laws.
V.
CONDITIONS PRECEDENT TO
CONSUMMATION OF THE
PLAN
A.
CONDITIONS PRECEDENT TO CONFIRMATION
Section
9.1 of the Plan provides that confirmation of the Plan is subject to entry of
the Confirmation Order by the Bankruptcy Court in form and substance reasonably
acceptable to the Debtors, DIP Lenders and the Purchaser.
B. CONDITIONS
PRECEDENT TO THE EFFECTIVE DATE
Section
9.2 of the Plan provides that the occurrence of the Effective Date is subject to
the satisfaction of the following conditions precedent (or conditions subsequent
with respect to actions that are to be taken contemporaneously with or
immediately upon the occurrence of the Effective Date). With respect
to the conditions set forth in (a), (b), and (d) below, the Debtors and the
Purchaser may jointly waive any such condition. With respect to the
conditions set forth in (c) below, only the Purchaser may waive any such
condition.
51
a) The
Confirmation Order in form and substance reasonably acceptable to the Debtors,
the Tranche A Lender, the Tranche B Lenders and Purchaser shall have become a
Final Order, and shall not be stayed, provided that the Effective Date may occur
if the Confirmation Order is not a Final Order at the option of the
Purchaser;
b) The
Plan Documents, including any Management Agreement, shall have been executed and
delivered, and any conditions (other than the occurrence of the Effective Date
or certification by a Debtor that the Effective Date has occurred) contained
therein shall have been satisfied or waived in accordance
therewith;
c) All
material governmental, regulatory and third party approvals, authorizations,
certifications, rulings, no action letters, opinions, waivers, and/or consents
in connection with the Plan, if any, have been obtained (unless failure to do so
will have a material adverse effect on the Debtors) and remain in full force and
effect, and there exists no claim, action, suit, investigation, litigation or
proceeding, pending or threatened in any court or before any arbitrator or
governmental instrumentality, which would prohibit the consummation of the
Plan;
d) Closing
on the Sale of the Assets shall have occurred or shall occur on the Effective
Date, and the Liquidating Debtors shall have received from the Purchaser the
Sale Proceeds.
C. FILING
NOTICE OF EFFECTIVE DATE
Section
9.3 of the Plan provides that within two (2) Business Days of the occurrence of
the Effective Date, the Liquidating Debtors shall file a notice of occurrence of
the Effective Date signed by the counsel for the Debtors in Possession and, if
different, counsel to the Liquidating Debtors, in the record of the Bankruptcy
Court reflecting (a) that the foregoing conditions to the occurrence of the
Effective Date have been satisfied or waived by the Debtors and any other person
whose consent or waiver is required, (b) the date of the Effective Date, and (c)
acknowledging that the Effective Date has occurred on and as of such
date.
52
VI. EFFECT OF CONFIRMATION OF
PLAN
A. BINDING
EFFECT
Section
10.1 of the Plan provides that subject to the occurrence of the Effective Date,
on and after the Effective Date, the provisions of the Plan shall bind any
holder of a Claim against, or Interest in, the Debtors and inure to the benefit
of and be binding on such holder’s respective successors and assigns, whether or
not the Claim or Interest of such holder is impaired under the Plan and whether
or not such holder has accepted the Plan.
B. TERM
OF PRE-CONFIRMATION INJUNCTIONS OR STAYS
Section
10.2 of the Plan provides that unless otherwise provided in the Plan, all
injunctions or stays arising prior to the Confirmation Date in accordance with
sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on
the Confirmation Date, shall remain in full force and effect until the Effective
Date.
C. INJUNCTION
AGAINST INTERFERENCE WITH PLAN
Section
10.3 of the Plan provides that upon the entry of the Confirmation Order, all
holders of Claims and Interests and other parties in interest, along with their
respective present or former affiliates, employees, agents, officers, directors,
or principals, shall be enjoined from taking any actions to interfere with the
implementation or consummation of the Plan.
53
D. INJUNCTION
Section
10.4 of the Plan provides that except as otherwise provided in the Plan or the
Confirmation Order, as of the Confirmation Date, but subject to the occurrence
of the Effective Date, all Persons who have held, hold or may hold Claims
against or Interests in the Debtors or the Estates are, with respect to any such
Claims or Interests, permanently enjoined after the Confirmation Date from:
commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding of any kind (including, without limitation, any
proceeding in a judicial, arbitral, administrative or other forum) against or
affecting the Assets, the Debtors, the Liquidating Debtors, or any of their
property, or any direct or indirect transferee of any property of or direct or
indirect successor in interest to, any of the foregoing Persons or any property
of any such transferee or successor; (ii) enforcing, levying, attaching
(including, without limitation, any pre judgment attachment), collecting or
otherwise recovering by any manner or means, whether directly or indirectly, any
judgment, award, decree or order against the Assets, the Debtors, the
Liquidating Debtors or any of their property, or any direct or indirect
transferee of any property of or direct or indirect successor in interest to,
any of the foregoing Persons, or any property of any such transferee or
successor; (iii) creating, perfecting or otherwise enforcing in any manner,
directly or indirectly, any encumbrance of any kind against the Assets, the
Debtors, the Liquidating Debtors or any of their property, or any direct or
indirect transferee of any property of or successor in interest to, any of the
foregoing Persons (iv) acting or proceeding in any manner, in any place
whatsoever, that does not conform to or comply with the provisions of the Plan
to the full extent permitted by applicable law; and (v) commencing or
continuing, in any manner or in any place, any action that does not comply with
or is inconsistent with the provisions of the Plan; provided, however, that
nothing contained in the Plan shall preclude such Persons from exercising their
rights, or obtaining benefits, pursuant to and consistent with the terms of the
Plan.
By
accepting distributions pursuant to the Plan, each holder of an Allowed Claim or
Interest will be deemed to have specifically consented to the Injunctions set
forth in this Section.
E. RELEASES
Section
10.5 of the Plan provides the following with respect to Releases:
1. Releases
by the Debtors. As of the Effective Date, and subject to its occurrence, for the
good and valuable consideration provided by each of the Released Parties, any
and all claims of the Debtors against any of the Released Parties based in whole
or in part upon any act, omission, transaction, agreement, event or other
occurrence taking place on or before the Effective Date shall be forever
released and discharged.
54
2. Releases
by Holders of Claims. Except as otherwise provided in the Plan or the
Confirmation Order, on the Effective Date: (i) each holder of a Claim or
Interest that voted to accept the Plan; and (ii) to the fullest extent
permissible under applicable law, as such law may be extended or interpreted
subsequent to the Effective Date, all holders of Claims and Interests, in
consideration for the obligations of the Debtors under the Plan and the other
contracts, instruments, releases, agreements or documents executed and delivered
in connection with the Plan, and each Person (other than the Debtors) that has
held, holds or may hold a Claim or Interest, as applicable, shall be deemed to
have unconditionally released the Released Parties from any and all Claims,
obligations, rights, suits, damages, Causes of Action, remedies, and
liabilities, whether known or unknown, foreseen or unforeseen, existing or
hereafter arising, in law, equity, or otherwise, that such Entity would have
been legally entitled to assert (whether individually or collectively), based in
whole or in part upon any act or omission, transaction, agreement, event, or
other occurrence taking place on or before the Effective Date.
F.
|
EXCULPATION
AND LIMITATION OF LIABILITY
|
Section
10.6 of the Plan provides that none of the Released Parties or the Liquidating
Debtors or the Plan Administrator shall have any liability to any Entity for any
act or omission in connection with or arising out of the negotiation of the
Plan, the pursuit of approval of the Disclosure Statement, the pursuit of
confirmation of the Plan, the consummation of the Plan, the transactions
contemplated and effectuated by the Plan, the administration of the Plan, or the
property to be distributed under either such plan or any other act or omission
during the administration of the Chapter 11 Cases or the Debtors’
Estates. In all respects, each of the foregoing shall be entitled to
rely upon the advice of counsel with respect to their duties and
responsibilities under the Plan.
55
G.
|
INJUNCTION
RELATED TO RELEASES AND EXCULPATION
|
Section
10.7 of the Plan provides that upon the Effective Date, except as otherwise
provided in the Plan, the Confirmation Order shall permanently enjoin the
commencement or prosecution by any Person, whether directly, derivatively or
otherwise, of any claims, obligations, suits, judgments, damages, demands,
debts, rights, causes of action or liabilities released pursuant to the Plan,
including but not limited to the claims, obligations, suits, judgments, damages,
demands, debts, rights, causes of action or liabilities released in Sections
10.5 and 10.6 of the Plan. Such injunction shall extend to Purchaser and their
respective properties and interests in property.
H.
|
DISCHARGE
|
Section
10.8 of the Plan provides that except as otherwise provided in the Plan, to the
fullest extent permitted by applicable law (a) on the Effective Date, the
Confirmation Order will operate as a discharge under Bankruptcy Code section
1141(d)(1), and release of any and all Claims, debts (as such term is defined in
Bankruptcy Code section 101(12)), Liens, security interests and encumbrances of
and against all property of each of the Debtors that arose before confirmation,
including without limitation, any Claim of the kind specified in Bankruptcy Code
sections 502(g), 502(h) or 502(i) and all principal and interest, whether
accrued before, on or after the Petition Date, regardless of whether (i) a proof
of claim in respect of such Claim has been filed or deemed filed, (ii) such
Claim has been Allowed pursuant to Bankruptcy Code section 502, or (iii) the
holder of such Claim has voted on the Plan or has voted to reject the Plan; and
(b) from and after the Confirmation Date, (x) all holders of Claims will be
barred and enjoined from asserting against the Debtors entitled to such
discharge pursuant to the Plan any Claims, debt (as defined in Bankruptcy Code
section 101(12)), Liens, security interests and encumbrances of and against all
property of each of the Debtors and (y) the Debtors will be fully and finally
discharged of any liability or obligation on Disallowed Claims and Disallowed
Interests. Except as otherwise specifically provided in the Plan,
nothing in the Plan will be deemed to waive, limit or restrict in any manner the
discharge granted upon confirmation of the Plan pursuant to Bankruptcy Code
section 1141.
56
I.
|
RETENTION
OF CAUSES OF ACTION/RESERVATION OF
RIGHTS.
|
Section
10.9 of the Plan provides that except as expressly provided otherwise in the
Plan, nothing contained in the Plan or the Confirmation Order shall be deemed to
be a waiver or relinquishment of any rights, claims or Causes of Action, rights
of setoff, or other legal or equitable defenses that the Debtors had immediately
prior to the Effective Date on behalf of the Estates or of themselves in
accordance with any provision of the Bankruptcy Code or any applicable
non-bankruptcy law.
J.
|
NO
SUCCESSOR LIABILITY
|
Section
10.10 of the Plan provides that except as otherwise expressly provided in the
Plan or an APA, the Purchaser shall have no responsibility for any liabilities
or obligations of the Debtors, the Liquidating Debtors, the Plan Administrator
or any other party relating to or arising out of the operations of or Assets of
the Debtors, arising prior to the Effective Date. The Purchaser is not, and
shall not be deemed to be, a successor to any of the Debtors or Liquidating
Debtors by reason of any theory of law or equity, and the Purchaser shall not
have any successor or transferee liability of any kind or character, except that
the Purchaser shall assume the Assumed Liabilities under the terms and subject
to the conditions set forth in the Plan or an APA.
57
VII.
EXECUTORY
CONTRACTS
A.
|
GENERAL
TREATMENT
|
Section
8.1 of the Plan provides that to the extent not previously assumed or rejected
pursuant to an earlier Sale Order,
(a). As
of and subject to the occurrence of the Effective Date, all executory contracts
and unexpired leases of the Debtors shall be deemed to be rejected by the
applicable Debtor as of the Effective Date, except for any executory contract or
unexpired lease that: (i) previously has been assumed and assigned or assumed
pursuant to an order of the Bankruptcy Court; (ii) is designated in an APA as a
contract or lease to be assumed or assumed and assigned to a Purchaser (such
list of contracts and leases to be assumed, the “Schedule of Assumed Contracts
and Leases”); or (iii) is the subject of a separate motion to assume or assume
and assign or to reject under section 365 of the Bankruptcy Code pending on the
Effective Date. For the avoidance of doubt, the Debtors may add any executory
contract or unexpired lease to the Schedule of Assumed Contracts and Leases,
thereby providing for the assumption or assumption and assignment of such
executory contract or lease pursuant to the terms of the Plan, or move to reject
any executory contract or unexpired lease (including any such contracts or
leases on the Schedule of Assumed Contracts and Leases), thereby providing for
its rejection pursuant to the terms of the Plan, at any time prior to the
Effective Date. Subject to the occurrence of the Effective Date, entry of the
Confirmation Order by the Bankruptcy Court shall constitute approval of such
assumptions, assumptions and assignments and rejections pursuant to sections
365(a) and 1123 of the Bankruptcy Code. Listing a contract or lease in the
Schedule of Assumed Contracts and Leases or rejecting any contract or lease
shall not constitute an admission by the applicable Debtor that the applicable
Debtor has any liability thereunder.
58
(b) Subject
to Section 8.2 of the Plan, entry of the Confirmation Order shall, subject to
the occurrence of the Effective Date, constitute: (i) the approval, pursuant to
sections 365(a) and 1123(b) of the Bankruptcy Code, of the assumption and/or
assumption and assignment of the executory contracts and unexpired leases
assumed and/or assigned pursuant to Section 8.1(a) and Section 8.1(b) of the
Plan; and (ii) the approval, pursuant to sections 365(a) and 1123(b) of the
Bankruptcy Code, of the rejection of the executory contracts and unexpired
leases rejected pursuant to Section 8.1(a) and Section 8.1(b) of the
Plan.
B.
|
CLAIMS
BASED ON REJECTION OF EXECUTORY CONTRACTS OR UNEXPIRED
LEASES
|
Section 8.2 of the Plan
provides:
(a) Treatment: Except
as otherwise provided in the Plan, all Claims arising from the rejection of
executory contracts or unexpired leases, if any, will be treated as Unsecured
Claims. All such Claims shall be discharged on the Effective Date, and shall not
be enforceable against the Debtors, the Liquidating Debtors, the Assets, the
Purchaser or their respective properties or interests in property (and, for the
avoidance of doubt, such rejected contracts and leases shall not constitute
Assumed Liabilities).
(b) Deadline:
To the extent not otherwise provided pursuant to an earlier Sale Order, each
Person who is a party to a contract or lease rejected under the Plan must file
with the Bankruptcy Court and serve on the Debtors or, if after the Effective
Date, on the Liquidating Debtors, no later than the earlier of (i) thirty (30)
days after the entry of an order for the rejection of such contract or lease or
(ii) thirty (30) days after the Effective Date, a proof of claim for damages
alleged to arise from the rejection of the applicable contract or lease or be
forever barred from filing a Claim, or sharing in distributions under the Plan,
related to such alleged rejection damages.
59
C.
|
CURE
OF DEFAULTS FOR ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED
LEASES
|
Section
8.3 of the Plan provides that to the extent not previously assumed or rejected
pursuant to an earlier Sale Order and, with respect to Cure Costs, to the extent
not previously set pursuant to an earlier order of the Bankruptcy
Court,
(a) Assumption
Notice: The Debtors shall serve a notice (the “Assumption Notice”) (which may be
part of or included with the Schedule of Assumed Contracts and Leases) on the
applicable counterparty of the potential, assumption, or assumption and
assignment, of a executory contracts and unexpired leases that are anticipated
to be assumed or assumed and assigned to a Purchaser (the “Assumed Leases and
Contracts”) in connection with the Sale of the Assets and the amount, if any,
that the Debtors contend is the amount needed to cure any defaults and to pay
any pecuniary losses with respect to such Assumed Leases and Contracts (the
“Cure Costs”); provided however, if the Debtors identify additional executory
contracts and unexpired leases that might be assumed by the Debtors or assumed
and assigned to a Purchaser, the Debtors will promptly send a supplemental
Assumption Notice to the applicable counterparties to such contract or
lease.
60
(b) Time
for Payment of Cure Costs: Except to the extent otherwise agreed in writing by
the Debtors, Purchaser and the non-Debtor party or parties to each such Assumed
Lease and Contract to be assigned to a Purchaser, the Purchaser (or the Debtors
if so specified in the APA) shall cure any monetary defaults arising under each
executory contract and lease to be assumed pursuant to the Plan and assigned to
the Purchaser pursuant to Section 8.1(a) or Section 8.1(b) of the Plan, in
accordance with section 365(b)(1) of the Bankruptcy Code, by payment of the Cure
Cost on the later of: (i) the Effective Date or as soon thereafter as is
reasonably practicable; (ii) the date on which the Cure Cost has been resolved
(either consensually or through judicial decision at the Cure Dispute Hearing,
subject, in any such case, to the terms and conditions of any APA) or as soon
thereafter as is reasonably practicable; and (iii) such other date as mutually
agreed upon by the Debtors, Purchaser and the non-Debtor party or parties to
each such Assumed Lease and Contract to be assigned to a Purchaser. To the
extent an Assumed Lease or Contract is not to be assigned to a Purchaser, the
Debtors shall cure monetary defaults on the later of (i) the Effective Date or
as soon thereafter as is reasonably practicable; (ii) the date on which the Cure
Cost has been resolved (either consensually or through judicial decision at the
Cure Dispute Hearing, subject, in any such case, to the terms and conditions of
any APA) or as soon thereafter as is reasonably practicable; and (iii) such
other date as mutually agreed upon by the Debtors and the non-Debtor party or
parties to each such Assumed Lease and Contract.
(c) Objections
to Cure Costs: Any party that fails to timely object to the
applicable Cure Cost listed on the Assumption Notice by the deadline set forth
in the Assumption Notice: (a) shall be forever barred, estopped and enjoined
from (x) disputing the Cure Cost relating to any executory contract or unexpired
lease set forth in the Assumption Notice, (y) asserting any Claim against the
applicable Debtor or the Purchaser or their properties arising under section
365(b)(1) of the Bankruptcy Code other than as set forth on the Assumption
Notice; and (b) shall be deemed to have consented to the assumption or the
assumption and assignment of such executory contract and unexpired lease and
shall be forever barred and estopped from asserting or claiming against the
Debtors, the Liquidating Debtors, the Purchaser or any other assignee of the
relevant executory contract or unexpired lease that any additional amounts are
due or defaults exist, or conditions to assumption or assumption and assignment
of such executory contract or unexpired lease must be satisfied (pursuant to
section 365(b)(1) of the Bankruptcy Code or otherwise). Any objection relating
to the Cure Cost shall specify the Cure Cost proposed by the counterparty to the
applicable contract or lease.
61
(d) Cure
Dispute Hearing: In the event of a timely objection (a “Cure
Dispute”) regarding: (i) any Cure Cost; (ii) the ability of the Debtors or the
Purchaser to demonstrate “adequate assurance of future performance” (within the
meaning of section 365 of the Bankruptcy Code) under any contract or lease to be
assumed; or (iii) any other matter pertaining to the proposed assumption or
assumption and assignment, a Hearing will be held by the Bankruptcy Court to
consider any such objection (a “Cure Dispute Hearing”). The cure
payments required by section 365(b)(1) of the Bankruptcy Code shall be made at
the time set forth in Section 8.3(b) of the Plan following the entry of a Final
Order resolving such Cure Dispute and approving the assumption. To the extent a
Cure Dispute relates solely to a Cure Cost, the applicable Debtor may assume or
assume and assign the applicable contract or lease prior to the resolution of
the Cure Dispute provided that the Purchaser (or the Debtors if such Assumed
Contract or Lease is not to be assigned to a Purchaser) establishes a reserve
containing Cash in an amount sufficient to pay the full amount asserted as cure
payment by the non-Debtor party to such contract or lease (or such smaller
amount as may be fixed or estimated by the Bankruptcy Court). To the extent the
Cure Dispute is resolved or determined unfavorably to the applicable Debtor in
its judgment, then such contract or lease shall not be assumed under the Plan
and the Debtor, or the Liquidating Debtor if after the Effective Date, shall
have the right to reject the applicable executory contract or unexpired lease
effective as of the Effective Date after such determination at the Cure
Hearing.
D.
|
COMPENSATION
AND BENEFIT PROGRAMS
|
Section
8.4 of the Plan provides that to the extent any exist, all employment and
severance policies, and all compensation and benefit plans, policies, and
programs of the Debtors applicable to their respective employees, retirees and
non-employee directors including, without limitation, all savings plans,
retirement plans, healthcare plans, disability plans, severance benefit plans,
incentive plans, and life, accidental death and dismemberment insurance plans
are treated as executory contracts under the Plan and on the Effective Date
shall be rejected as the Effective Date.
62
VIII. PROCEDURES FOR RESOLVING
CLAIMS
A.
|
OBJECTIONS
TO CLAIMS AND INTERESTS
|
Section
7.1 of the Plan provides that the Liquidating Debtors shall be entitled to
object to Claims and Interests after the Effective Date, provided, however, the
Liquidating Debtors may only object to Mission Critical Vendor Claims or Claims
that are Assumed Liabilities if and as directed by Purchaser. Any objections to
those Claims (other than Administrative Expense Claims) and Interests, shall be
filed no later than one-hundred twenty (120) days after the Effective Date,
subject to any extensions granted pursuant to further order of the Bankruptcy
Court, which extensions may be obtained by the Liquidating Debtors without
notice upon ex parte motion. Any Claims and Interests filed after the
Bar Date shall be deemed disallowed and expunged in their entirety without
further order of the Bankruptcy Court. Notwithstanding any authority to the
contrary, an objection to a Claim or Interest shall be deemed properly served on
the holder if the objecting party effects service in any of the following
manners: (i) in accordance with Federal Rule of Civil Procedure 4, as modified
and made applicable by Bankruptcy Rule 7004; (ii) by first class mail, postage
prepaid, on the signatory on the proof of claim; or (iii) on any counsel that
has appeared on the holder’s behalf in the Bankruptcy Cases (so long as such
appearance has not been subsequently withdrawn). From and after the Effective
Date, the Liquidating Debtors, in consultation with Purchaser, may settle or
compromise any Disputed Claim or Disputed Interest without need for notice or
approval of the Bankruptcy Court.
B.
|
DISPUTED
CLAIMS AND DISPUTED INTERESTS
|
Section 7.2 of the Plan
provides:
(a) No
Distributions or Payments Pending Allowance. Except as provided in Section 7.3,
Disputed Claims and Disputed Interests shall not be entitled to any Plan
Distributions unless and until such Disputed Claims or Disputed Interests become
Allowed Claims or Allowed Interests.
63
(b) Plan
Distributions to Holders of Subsequently Allowed Claims and Allowed Interests.
On each Distribution Date (or such earlier date as determined by the Liquidating
Debtors in their sole discretion but subject to Section 7.3), the Liquidating
Debtors or Purchaser, as the case may be, will make distributions or payments:
(i) on account of any Disputed Claim or Disputed Interest that has become an
Allowed Claim or Allowed Interest since the occurrence of the previous
Distribution Date; and (ii) on account of previously Allowed Claims or Allowed
Interests of property that would have been distributed or paid to the holders of
such Claims or Interests on the dates distributions previously were made to
holders of Allowed Claims or Allowed Interests in such Class had the Disputed
Claims or Disputed Interests that have become Allowed Claims or Allowed
Interests been Allowed on such dates. The Liquidating Debtors, or Purchaser, as
the case may be, shall distribute in respect of such newly Allowed Claims or
Allowed Interests the Plan Consideration as to which holders of such Claims or
Interests would have been entitled under the Plan if such newly Allowed Claims
or Allowed Interests were fully or partially Allowed, as the case may be, on the
Effective Date, less direct and actual expenses, fees, or other direct costs of
maintaining Plan Consideration on account of such Disputed Claims and Disputed
Interests.
(c) Distribution
of Reserved Plan Consideration Upon Disallowance. Except as otherwise
provided in the Plan, to the extent any Disputed Claim or Disputed Interest has
become Disallowed in full or in part (in accordance with the procedures set
forth in the Plan), any Plan Consideration held by the Liquidating Debtors on
account of, or to pay, such Disputed Claim or Disputed Interest, including
amounts held in any reserve, shall become the sole and exclusive property of the
Liquidating Debtors and shall be applied in accordance with the terms of the
Plan.
64
C.
|
ESTIMATION
OF CLAIMS
|
Section
7.3 of the Plan provides that for purposes of calculating and making
distributions under the Plan, the Liquidating Debtors shall be entitled to
estimate, in good faith and with due regard to litigation risks associated with
Disputed Claims, the maximum dollar amount of Allowed and Disputed Claims,
inclusive of contingent and/or unliquidated Claims in a particular Class. The
Liquidating Debtors may request that the Bankruptcy Court estimate any Claim
pursuant to section 502(c) of the Bankruptcy Code for purposes of determining
the Allowed amount of such Claim regardless of whether any Person has previously
objected to such Claim or whether the Bankruptcy Court has ruled on any such
objection, and the Bankruptcy Court shall retain jurisdiction to estimate any
Claim for purposes of determining the allowed amount of such Claim at any time.
In the event that the Bankruptcy Court estimates any contingent or unliquidated
Claim for allowance purposes, that estimated amount will constitute either the
Allowed amount of such Claim or a maximum limitation on such Claim, as
determined by the Bankruptcy Court. If the estimated amount constitutes a
maximum limitation on such Claim, the objecting party may elect to pursue any
supplemental proceedings to object to any ultimate payment on such Claim. All of
the objection, estimation, settlement, and resolution procedures set forth in
the Plan are cumulative and not necessarily exclusive of one another. Claims may
be estimated and subsequently compromised, settled, resolved or withdrawn by any
mechanism approved by the Bankruptcy Court.
65
D.
|
NO
RECOURSE
|
Section
7.4 of the Plan provides that notwithstanding that the Allowed amount of any
particular Disputed Claim or Disputed Interest is reconsidered under the
applicable provisions of the Bankruptcy Code and Bankruptcy Rules or is Allowed
in an amount for which after application of the payment priorities established
by the Plan there is insufficient value to provide a recovery equal to that
received by other holders of Allowed Claims or Allowed Interests in the
respective Class, no such holder shall have recourse against the Debtors, the
Liquidating Debtors, Plan Administrator, the Purchaser, or any of their
respective professionals, consultants, officers, directors, employees or members
or their successors or assigns, or any of their respective property, or the
Assets. However, nothing in the Plan shall modify any right of a holder of a
Claim under section 502(j) of the Bankruptcy Code, nor shall it modify or limit
the ability, if any, of claimants to seek disgorgement to remedy any unequal
distribution from parties other than those released under this section. THE
ESTIMATION OF CLAIMS AND THE ESTABLISHMENT OF RESERVES UNDER THE PLAN MAY LIMIT
THE DISTRIBUTION TO BE MADE ON INDIVIDUAL DISPUTED CLAIMS, REGARDLESS OF THE
AMOUNT FINALLY ALLOWED ON ACCOUNT OF SUCH DISPUTED CLAIMS.
E.
|
EXPENSES
INCURRED ON OR AFTER THE EFFECTIVE
DATE
|
Section
7.5 of the Plan provides that except as otherwise ordered by the Bankruptcy
Court, in accordance with Article 5.6(5) of the Plan, the reasonable fees and
expenses of the Plan Administrator and the reasonable fees and expenses incurred
by any Professional Person retained by the Liquidating Debtors on or after the
Effective Date in connection with implementation of the Plan, including without
limitation, reconciliation of objection to, and settlement of Claims, shall
constitute Wind Down Costs and shall be paid in Cash by the Liquidating Debtors
from proceeds available for such payments pursuant to the Plan.
66
IX. CERTAIN MISCELLANEOUS
PROVISIONS
A.
|
SURRENDER
OF INSTRUMENTS
|
Section
12.1 of the Plan provides that the Liquidating Debtors may in their discretion
require as a condition to participation under the Plan, that the holder of a
note, debenture or other evidence of indebtedness of the Debtors that desires to
receive the property to be distributed on account of an Allowed Claim based on
such note, debenture or other evidence of indebtedness shall surrender such
note, debenture or other evidence of indebtedness to the Liquidating Debtors, or
their designee (unless such holder’s Claim will be reinstated by the Plan, in
which case such surrender shall not be required), and shall execute and deliver
such other documents as are necessary to effectuate the Plan; provided, however,
that if a claimant is a holder of an equity security, note, debenture or other
evidence of indebtedness for which no physical certificate was issued to the
holder but which instead is held in book-entry form then the Liquidating Debtors
or the indenture trustee for such equity security, note, debenture or other
evidence of indebtedness shall waive the requirement of surrender. Except as
otherwise provided in this section, if no required surrender of a security,
note, debenture or other evidence of indebtedness occurs and a claimant does not
provide an affidavit and indemnification agreement, in form and substance
satisfactory to the Liquidating Debtors, that such security, note, debenture or
other evidence of indebtedness was lost, then no distribution may be made to any
claimant whose Claim or Interest is based on such security, note, debenture or
other evidence of indebtedness thereof.
B.
|
EXEMPTION
FROM CERTAIN TRANSFER TAXES
|
Section
12.2 of the Plan provides that to the fullest extent permitted by applicable
law, all sale transactions consummated by the Debtors or the Liquidating
Debtors, including the transfers effectuated under the Plan, the sale by the
Debtors or Liquidating Debtors Assets pursuant to section 363(b) of the
Bankruptcy Code or the Plan, and any assumption, assignment, and/or sale by the
Debtors of their interests in unexpired leases of non-residential real property
or executory contracts pursuant to section 365(a) of the Bankruptcy Code, shall
constitute a “transfer under a plan” within the purview of section 1146 of the
Bankruptcy Code, and shall not be subject to any stamp, real estate transfer,
mortgage recording, or other similar tax.
67
C.
|
EXEMPTION
FROM SECURITIES LAWS
|
Section
12.3 of the Plan provides that the New Common Stock, including the Series A
Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock, shall
be exempt from registration under any federal, state or local law, rule or
regulation pursuant to Section 1145 of the Bankruptcy Code or other applicable
law. Any person who solicits or participates in the offer, issuance,
sale or purchase of the New Common Stock, including the Series A Preferred
Stock, Series B Preferred Stock, and Series C Preferred Stock, issued under the
Plan, in good faith and in compliance with the applicable provisions of the
Bankruptcy Code, shall not be liable, on account of such solicitation or
participation, for violation of any applicable law, rule or regulation governing
solicitation of acceptance or rejection of the Plan or the offer, issuance, sale
or purchase of securities pursuant thereto. The Debtors have, and upon
confirmation of the Plan shall be deemed to have, solicited acceptances of the
Plan in good faith and in compliance with the applicable provisions of the
Bankruptcy Code, and the Debtors and the Purchaser (and their respective
affiliates, agents, directors, managers, officers, employees, advisors, and
attorneys) have participated in good faith and in compliance with the applicable
provisions of the Bankruptcy Code in the offer, issuance, sale, and purchase of
any securities offered and sold under the Plan, and therefore are not, and on
account of such offer, issuance, sale, solicitation, and/or purchase shall not
be, liable at any time for the violation of any applicable law, rule, or
regulation governing the solicitation of acceptances or rejections of the Plan
or offer, issuance, sale, or purchase of the securities offered and sold under
the Plan.
68
D.
|
RETIREE
BENEFITS
|
Section
12.4 of the Plan provides that on and after the Effective Date, pursuant to
section 1129(a)(13) of the Bankruptcy Code, payments in respect of retiree
benefits (within the meaning of, and subject to the limitations of, section 1114
of the Bankruptcy Code), if any, at the level established in accordance with
section 1114 of the Bankruptcy Code, at any time prior to the Confirmation Date,
shall be continued for the duration of the period for which the Debtors had
obligated themselves to provide such benefits. Nothing in the Plan shall: (i)
restrict Purchaser’s right to modify the terms and conditions of the retiree
benefits, if any, as otherwise permitted pursuant to the terms of the applicable
plans, non-bankruptcy law, or section 1114(m) of the Bankruptcy Code; or (ii) be
construed as an admission that any such retiree benefits are owed by the
Debtors.
E.
|
DISSOLUTION
OF CREDITORS’ COMMITTEE
|
Section
12.5 of the Plan provides that any Creditors’ Committee shall be automatically
dissolved on the later of: (i) the Effective Date; and (ii) the conclusion of
any appeals with respect to the Confirmation Order (but such functions shall
relate solely to services performed related to such appeal), and the Creditors’
Committee shall be deemed dissolved as of such date except with respect to the
review and prosecution of Fee Claims and any objections thereto. Following the
Effective Date, the attorneys and financial advisors, if any, to the Creditors’
Committee shall be entitled to assert any reasonable claims for compensation for
services rendered or reimbursement for expenses incurred after the Effective
Date in connection with the pursuit of their own Fee Claims or the
representation of the Creditors’ Committee in connection with the review of and
the right to be heard in connection with all Fee Claims. Except as otherwise
provided in this Section 12.5, on the Effective Date, all members, employees or
agents of the Creditors’ Committee shall be released and discharged from all
rights and duties arising from, or related to, the Bankruptcy
Cases.
69
F.
|
AMENDMENTS/CHANGES
OF PLAN STRUCTURE
|
Section
12.6 of the Plan provides the following:
(a) Plan
Modifications. The Plan may be amended, modified, or supplemented by the Debtors
in the manner 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 otherwise ordered by the Bankruptcy
Court. In addition, after the Confirmation Date, so long as such action does not
materially and adversely affect the treatment of holders of Allowed Claims or
Allowed Interests pursuant to the Plan, the Debtors may remedy any defect or
omission or reconcile any inconsistencies in the Plan, the Plan Documents and/or
the Confirmation Order, with respect to such matters as may be necessary to
carry out the purposes and effects of the Plan, and any holder of a Claim or
Interest that has accepted the Plan shall be deemed to have accepted the Plan as
amended, modified, or supplemented.
(b) Amendments
to Accommodate Reorganization Election. To accommodate the Plan structure
determined by Purchaser, the Plan may be modified at any time prior to the
Effective Date to provide (i) for the change in the defined term “Liquidating
Debtors” and the substitution of “Reorganized Debtors” in its place, as
appropriate; (ii) for the retention of Assets by the Reorganized Debtors (rather
than a sale of the Assets to Purchaser) and the continued operation of the
Reorganized Debtors; (iii) for the issuance and distribution to holders of
Claims and Interests of the New Common Stock and Preferred Stock in the
Reorganized Debtors’ Parent (rather than in Newco) in the same percentages and
on the same basis as provided in the Plan; (iv) for the elimination of the Plan
Administrator and the vesting of the rights and duties to implement the Plan in
the Reorganized Debtors rather than the Liquidating Debtors; (v) for the
appointment of new officers, directors and managers, as applicable, of the
Reorganized Debtors; (vi) for the assumption of, and payment of Cure Costs by,
the Reorganized Debtors, of any Assumed Leases and Contracts (rather than the
assignment thereof to, and payment of Cure Costs by, the Purchaser); and (vii)
for other technical conforming changes in provisions of the Plan as deemed
necessary by the Purchaser and Debtors to accommodate the change in structure
thereof. The Plan Consideration and the Plan Distribution shall not be adversely
affected by such modifications. Confirmation of the Plan shall
constitute findings and conclusions that such modifications shall be deemed to
be non-material modifications to the Plan, no holders of Claims or Interests are
adversely affected by such modifications, no additional disclosure shall be
required with respect to such modifications, no re-solicitation shall be
required as a result of such modifications, all acceptances and rejections of
the Plan shall be unaffected by the modifications and, if the modifications are
made after the Confirmation Hearing, no additional Confirmation Hearing shall be
required with respect to such modifications, and the Plan, as so modified, shall
constitute the Plan, as defined in the Plan, for all purposes.
70
(c) Amendments
to Accommodate Sale of Assets. In the event of a sale of the Assets pursuant to
section 363 of the Bankruptcy Code prior to the Effective Date, upon motion by
the Debtors (which may be heard on an expedited basis), the Debtors may modify
the Plan prior to the Effective Date to provide for technical conforming changes
to the Plan to reflect and accommodate the prior sale of the Assets. The Plan
Consideration and the Plan Distribution shall not be adversely affected by such
modifications. Confirmation of the Plan shall constitute findings and
conclusions that the modifications shall be deemed to be non-material
modifications to the Plan, no holders or Claims or Interests are adversely
affected by such modifications, no additional disclosure shall be required with
respect to such non-material modifications, no re-solicitation shall be required
as a result of the non-material modifications, all acceptances and rejections of
the Plan shall be unaffected by the modifications and, if the modifications are
made after the Confirmation Hearing, no additional Confirmation Hearing shall be
required with respect to such modifications, and the Plan as so modified, shall
constitute the Plan, as defined in the Plan for all purposes.
71
(d) Other
Amendments. Prior to the Effective Date, the Debtors may make appropriate
technical adjustments and modifications to the Plan without further order or
approval of the Bankruptcy Court; provided, however, that such technical
adjustments and modifications do not adversely affect in a material way the
treatment of holders of Claims or Interests under the Plan. Notwithstanding the
foregoing provisions of Article 12.6, no amendment to the Plan shall be
effective unless it has been agreed to in writing by the Purchaser.
G.
|
POOLING
OF ASSETS
|
Section
12.7 of the Plan provides that the Plan is premised upon the pooling of the
Assets of the Debtors solely for purposes of actions associated with the
confirmation and consummation of the Plan, including, but not limited to,
voting, confirmation and distribution. In connection herewith, each
and every Claim filed or to be filed in the Chapter 11 Cases against any of the
Debtors shall be deemed a single consolidated Claim against and obligation of
all the consolidated Debtors. The Plan does not contemplate the
merger or dissolution of any of the Debtors or the transfer or commingling of
any Assets of any of the Debtors, except to accomplish the distributions under
the Plan. Such pooling of Assets shall not affect (other than for
Plan voting, treatment, and/or distribution purposes) (i) the legal and
corporate structures of the Debtors or the Reorganized Debtors or (ii) any
guarantees that may be required to be provided on and after the Effective
Date.
H.
|
REVOCATION
OR WITHDRAWAL OF THE PLAN
|
Section
12.8 of the Plan provides that subject to the provisions of the Plan Support
Agreement, the Debtors reserve the right to revoke or withdraw the Plan prior to
the Effective Date. If the Debtors revoke or withdraw the Plan prior to the
Effective Date as to any or all of the Debtors, or if confirmation or the
Effective Date as to any or all of the Debtors does not occur, then, with
respect to such Debtors: (a) the Plan shall be null and void in all respects;
(b) any settlement or compromise embodied in the Plan (including the fixing or
limiting to an amount certain any Claim or Interest or Class of Claims or
Interests), assumption or rejection of executory contracts or leases affected by
the Plan, and any document or agreement executed pursuant to the Plan shall be
deemed null and void; and (c) nothing contained in the Plan shall (i) constitute
a waiver or release of any Claims by or against, or any Interests in, such
Debtors or any other Person, (ii) prejudice in any manner the rights of such
Debtors or any other Person or (iii) constitute an admission of any sort by the
Debtors or any other Person.
72
I.
|
ALLOCATION
OF PLAN DISTRIBUTIONS BETWEEN PRINCIPAL AND
INTEREST
|
Section
12.9 of the Plan provides that to the extent that any Allowed Claim entitled to
a distribution under the Plan consists of indebtedness and other amounts (such
as accrued but unpaid interest thereon), such distribution shall be allocated
first to the principal amount of the Claim (as determined for federal income tax
purposes) and then, to the extent the consideration exceeds the principal amount
of the Claim, to such other amounts.
J.
|
SEVERABILITY
|
Section
12.10 of the Plan provides that if, prior to the entry of the Confirmation
Order, any term or provision of the Plan is held by the Bankruptcy Court to be
invalid, void, or unenforceable, the Bankruptcy Court, at the request of the
Debtors, shall have the power to alter and interpret such term or provision to
make it valid or enforceable to the maximum extent practicable, consistent with
the original purpose of the term or provision held to be invalid, void, or
unenforceable, and such term or provision shall then be applicable as altered or
interpreted. Notwithstanding any such holding, alteration, or interpretation,
the remainder of the terms and provisions of the Plan will remain in full force
and effect and will in no way be affected, impaired, or invalidated by such
holding, alteration, or interpretation. The Confirmation Order shall constitute
a judicial determination and shall provide that each term and provision of the
Plan, as it may have been altered or interpreted in accordance with the
foregoing, is valid and enforceable pursuant to its terms.
73
K.
|
GOVERNING
LAW
|
Section
12.11 of the Plan provides that except to the extent that the Bankruptcy Code or
other federal law is applicable, or to the extent a Plan Document or exhibit or
schedule to the Plan provides otherwise, the rights, duties, and obligations
arising under the Plan and the Plan Documents shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without giving effect to the principles of conflict of laws
thereof.
L.
|
INCONSISTENCY
|
Section
12.12 of the Plan provides that in the event of any inconsistency among the
Plan, the Disclosure Statement, the Plan Documents, any exhibit to the Plan or
any other instrument or document created or executed pursuant to the Plan, the
provisions of the Plan shall govern.
M.
|
INSURANCE
|
Section
12.13 of the Plan provides that nothing in the Plan will diminish or impair the
enforceability of any policies of insurance that may cover Claims against or
Interests in the Estates, the Debtors or any related Person. Holders
of Claims that are eligible to be satisfied, in whole or in part, through any
such policy will be obligated, as a condition to receiving any distributions
under the Plan, to seek recovery or assist the Debtors, Reorganized Debtors,
Liquidating Debtors, Purchaser, and Plan Administrator, as applicable, in
seeking recovery under such policies with regard to such Claims.
N.
|
SUCCESSORS
AND ASSIGNS
|
Section
12.14 of the Plan provides that the rights, benefits, and obligations of any
Person named or referred to in the Plan shall be binding upon, and shall inure
to the benefit of the heirs, executors, administrators, successors and/or
assigns of such Person.
74
O.
|
TIME
|
Section
12.15 of the Plan provides In computing any period of time prescribed or allowed
by the Plan, unless otherwise set forth in the Plan or determined by the
Bankruptcy Court, the provisions of Bankruptcy Rule 9006 shall
apply.
P.
|
CREDIT
BID
|
Section
12.16 of the Plan provides that nothing in the Plan shall impair or otherwise
alter the rights of the Tranche A Lender, the Tranche B Agent or the
Pre-Petition Debenture Agents to credit bid with respect to any sale of the
Assets or the Debtors’ equity under either a sale pursuant to section 363(k) of
the Bankruptcy Code or the Plan.
Q.
|
NOTICES
|
Section
12.18 of the Plan provides that in order to be effective, all notices, requests,
and demands to or upon the Liquidating Debtors from and after the Effective Date
shall be in writing (including by email or facsimile transmission) and, unless
otherwise provided in the Plan, shall be deemed to have been duly given or made
only when actually delivered or, in the case of notice by email or facsimile
transmission, when received and confirmed, addressed as follows:
To the
Debtors:
GLOBAL
CAPACITY HOLDCO, LLC
Attn:
George King
200 S.
Wacker Drive, Suite 1650
Chicago,
Illinois 60608
Telephone:
(917) 398-0815
gking@globalcapacity.com
GLOBAL
CAPACITY HOLDCO, LLC
Attn:
Patrick Shutt
200 S.
Wacker Drive, Suite 1650
Chicago,
Illinois 60608
Telephone:
(312) 660.5097
pshutt@globalcapacity.com
-and-
75
HELLER
DRAPER HAYDEN PATRICK & HORN, LLC
Attn:
Douglas S. Draper, Esq.
ddraper@hellerdraper.com
650
Poydras Street – 25th Floor
New
Orleans, LA 70130
Telephone: (504)
299-3300
Facsimile: (504)
299-3399
Counsel
to the Debtors and Debtors in Possession
-and-
WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC
Attn.:
Francis A. Monaco, Jr.
fmonaco@wcsr.com
222
Delaware Avenue, Suite 1501
Wilmington,
DE 19801
Telephone:
(302) 252-4320
Facsimile:
(302) 252-4330
Counsel
to the Debtors and Debtors in Possession
To the
Pre-Petition Debenture Holders:
OLSHAN
GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Attn:
Adam Friedman, Esq.
Park
Avenue Tower
65 East
55th Street
New York,
New York 10022
Telephone:
(212) 451-2216
Facsimile:
(212) 451-2222
afriedman@olshanlaw.com
Counsel
to Pre-Petition Debenture Holders
-and-
Young
Conaway Stargatt & Taylor, LLP
The
Brandywine Building
1000 West
Street, 17th Floor
P.O. Box
391
Wilmington,
DE 19801
Telephone:
(302) 571.6600
Facsimile:
(302) 571.1253
Counsel
to Pre-Petition Debenture Holders
rbrady@ycst.com
76
To the
Tranche A DIP Lender:
Downtown
CP-CGSY, LLC
c/o
Downtown Capital Partners, LLC
One
Barker Avenue, Suite 260
White
Plains, New York 10601
Telephone:
(914) 683-9614
Attn: Gary
Katz
-and-
GREENBERG
TRAURIG, LLP
Attn:
Alan J. Brody, Esq.
200 Park
Avenue
Florham
Park, New Jersey 07932
Telephone:
(973) 443-3542
Facsimile:
(973) 298-1333
BrodyA@gtlaw.com
Counsel
to Tranche A DIP Lender
To the
Tranche B DIP Lenders:
BLACK
RIVER GLOBAL EQUITY FUND LTD.
as
Tranche B Agent
12700
Whitewater Drive
Minnetonka,
Minnesota 55343
Attn:
Richard Gammill
Telephone:
(952) 984-3173
Facsimile:
(952) 249-4038
richard.gammill@black-river.com
R.
|
RESERVATION
OF RIGHTS
|
Section
12.19 of the Plan provides that except as expressly set forth in the Plan, the
Plan shall have no force or effect until the Effective Date. Neither the filing
of the Plan, or any statement or provision contained in the Plan, or the taking
of any action by the Debtors with respect to the Plan, shall be or shall be
deemed to be, an admission or waiver of any rights of the Debtors with respect
to any Claims or Interests prior to the Effective Date.
77
X. SECURITIES REGISTRATION
EXEMPTION
A.
|
SECURITIES
REGISTRATION EXEMPTION
|
To the
fullest extent permitted by law, the securities to be issued pursuant
to the Plan will be issued without registration under the Securities Act or any
similar federal, state, or local law in reliance upon the exemptions set forth
in section 1145 of the Bankruptcy Code. These issuances would also be exempt
from registration under the Securities Act or any similar federal, state, or
local law in reliance on the exemption set forth in section 4(2) of the
Securities Act or Regulation D promulgated thereunder.
B.
|
SECTION
1145 OF THE BANKRUPTCY CODE
|
Section
1145(c) of the Bankruptcy Code provides that securities issued pursuant to a
registration exemption under section 1145(a)(1) of the Bankruptcy Code are
deemed to have been issued pursuant to a public offering. Therefore,
the securities issued pursuant to a section 1145 exemption may generally be
resold by any holder thereof without registration under the Securities Act
pursuant to the exemption provided by section 4(1) thereof, unless the holder is
an “underwriter” with respect to such securities, as such term is defined in
section 1145(b)(1) of the Bankruptcy Code. In addition, such
securities generally may be resold by the recipients thereof without
registration under state securities or “blue sky” laws pursuant to various
exemptions provided by the respective laws of the individual
states. However, recipients of securities issued under the Plan are
advised to consult with their own counsel as to the availability of any such
exemption from registration under federal securities laws and any relevant state
securities laws in any given instance and as to any applicable requirements or
conditions to the availability thereof.
Section
1145(b)(1) of the Bankruptcy Code defines an “underwriter” for purposes of the
Securities Act as one who, subject to certain exceptions, (a) purchases a claim
with a view to distribution of any security to be received in exchange for such
claim, or (b) offers to sell securities offered or sold under the plan for the
holders of such securities, or (c) offers to buy securities issued under the
plan from the holders of such securities, if the offer to buy is made with a
view to distribution of such securities, and if such offer is under an agreement
made in connection with the plan, with the consummation of the plan or with the
offer or sale of securities under the plan, or (d) is an issuer, as used in
section 2(11) of the Securities Act, with respect to such
securities.
78
The term
“issuer,” as used in section 2(11) of the Securities Act, includes any person
directly or indirectly controlling or controlled by, an issuer of securities, or
any person under direct or indirect common control with such
issuer. “Control” (as defined in Rule 405 under the Securities Act)
means the possession, direct or indirect, of the power to direct or cause the
direction of the policies of a person, whether through the ownership of voting
securities, by contract, or otherwise. Accordingly, an officer or
director of a reorganized debtor or its successor under a plan of reorganization
may be deemed to be “in control” of such debtor or successor, particularly if
the management position or directorship is coupled with ownership of a
significant percentage of the reorganized debtor’s or its successor’s voting
securities. Moreover, the legislative history of section 1145 of the
Bankruptcy Code suggests that a creditor who owns at least ten percent (10%) of
the voting securities of a reorganized debtor may be presumed to be a “control
person.”
To the
extent that persons deemed “underwriters” receive securities under the Plan,
resales of such securities would not be exempted by section 1145 of the
Bankruptcy Code from registration under the Securities Act or other applicable
law. Holders of such restricted securities may, however, be able, at
a future time and under certain conditions described below, to sell securities
without registration pursuant to the resale provisions of Rule 144 and Rule 144A
under the Securities Act; provided, however, that any
sale will be subject to the restrictions on transfer and assignment contained in
applicable law.
79
C.
|
SECTION
4(2) OF THE SECURITIES ACT/REGULATION
D
|
Section
4(2) of the Securities Act provides that the issuance of securities by an issuer
in transactions not involving any public offering are exempt from registration
under the Securities Act. Regulation D is a non-exclusive safe harbor
promulgated by the United States Securities and Exchange Commission under the
Securities Act related to, among others, section 4(2) of the Securities
Act.
The term
“issuer,” as used in section 4(2) of the Securities Act, means, among other
things, a person who issues or proposes to issue any security.
Securities
issued pursuant to the exemption provided by section 4(2) of the Securities Act
or Regulation D promulgated thereunder are considered “restricted
securities.” As a result, resales of such securities may not be
exempt from the registration requirements of the Securities Act or other
applicable law. Holders of such restricted securities may, however,
be able, at a future time and under certain conditions described below, to sell
securities without registration pursuant to the resale provisions of Rule 144
and Rule 144A under the Securities Act; provided, however, that any
sale will be subject to the restrictions on transfer and assignment contained in
applicable law.
D.
|
RULE
144 AND RULE 144A
|
Under
certain circumstances, affiliated holders of restricted securities may be
entitled to resell their securities pursuant to the limited safe harbor resale
provisions of Rule 144. Generally, Rule 144 provides that if certain
conditions are met (e.g., that the availability
of current public information with respect to the issuer, volume limitations,
and notice and manner of sale requirements), specified persons who resell
restricted securities or who resell securities which are not restricted but who
are “affiliates” of the issuer of the securities sought to be resold, will not
be deemed to be “underwriters” as defined in section 2(11) of the Securities
Act. Rule 144 provides that: (i) a non-affiliate who has
not been an affiliate during the preceding three months may resell restricted
securities after a six-month holding period if at the time of the sale there is
current public information regarding the issuer and after a one year holding
period if there is not current public information regarding the issuer at the
time of the sale; and (ii) an affiliate may sell restricted securities after a
six month holding period if at the time of the sale there is current public
information regarding the issuer and after a year holding period if there is not
current public information regarding the issuer at the time of the sale,
provided that in each case the affiliate otherwise complies with the volume,
manner of sale and notice requirements of Rule 144.
80
Rule 144A
provides a non-exclusive safe harbor exemption from the registration
requirements of the Securities Act for resales to certain “qualified
institutional buyers” of securities that are “restricted securities” within the
meaning of the Securities Act, irrespective of whether the seller of such
securities purchased its securities with a view towards reselling such
securities, if certain other conditions are met (e.g., the availability of
information required by paragraph 4(d) of Rule 144A and certain notice
provisions). Under Rule 144A, a “qualified institutional buyer” is
defined to include, among other persons, “dealers” registered as such pursuant
to section 15 of the Exchange Act, and entities that purchase securities for
their own account or for the account of another qualified institutional buyer
and that, in the aggregate, own and invest on a discretionary basis at least
$100 million in the securities of unaffiliated issuers. Subject to
certain qualifications, Rule 144A does not exempt the offer or sale of
securities that, at the time of their issuance, were securities of the same
class of securities then listed on a national securities exchange
(registered as such pursuant to section 6 of the Exchange Act) or quoted in a
United States automated inter-dealer quotation system.
81
IN VIEW
OF THE COMPLEX, SUBJECTIVE NATURE OF THE QUESTION OF WHETHER A RECIPIENT OF
SECURITIES PURSUANT TO THE PLAN MAY BE AN UNDERWRITER OR AN AFFILIATE OF THE
ISSUER OF SUCH SECURITIES, AND THE POSSIBILITY THAT THE PLAN CONSIDERATION MAY
INCLUDE EITHER SECURITIES IN THE REORGANIZED DEBTORS OR IN THE PURCHASER, THE
DEBTORS MAKES NO REPRESENTATIONS CONCERNING THE RIGHT OF ANY PERSON TO TRANSFER
THE SECURITIES TO BE DISTRIBUTED PURSUANT TO THE PLAN. ACCORDINGLY,
THE DEBTORS RECOMMEND THAT POTENTIAL RECIPIENTS OF SECURITIES UNDER THE PLAN
CONSULT THEIR OWN COUNSEL CONCERNING WHETHER THEY MAY FREELY TRANSFER SUCH
SECURITIES.
XI.
CERTAIN U.S. FEDERAL INCOME
TAX CONSEQUENCES
The
following discussion summarizes certain U.S. federal income tax consequences of
the implementation of the Plan to the Debtors and certain U.S. holders of Claims
and Interests. The following summary does not address the U.S.
federal income tax consequences to holders whose Claims are unimpaired or
otherwise entitled to payment in full in cash under the Plan.
The
following summary is based on the Internal Revenue Code of 1986, as amended (the
“Tax Code”),
Treasury Regulations promulgated thereunder, judicial decisions, and published
administrative rules and pronouncements of the Internal Revenue Service (the
“IRS”), all as
in effect on the date hereof. Changes in such rules or new
interpretations thereof may have retroactive effect and could significantly
affect the tax consequences described below.
The U.S.
federal income tax consequences of the Plan are complex and are subject to
significant uncertainties. No assurance can be given that legislative
or administrative changes or court decisions may not be forthcoming which would
require significant modification of the statements expressed in this
section. Certain tax aspects of the Plan are uncertain due to the
lack of applicable regulations and other tax precedent. The Debtors
have not requested a ruling from the IRS or an opinion of counsel with respect
to any of the tax aspects of the Plan. Thus, no assurance can be
given as to the interpretation that the IRS will adopt.
82
This
summary generally does not address foreign, state or local tax consequences of
the Plan, nor does it address the U.S. federal income tax consequences of the
Plan to the particular circumstances of any holder or to holders subject to
special income tax rules (such as S corporations, regulated investment
companies, insurance companies, financial institutions, small business
investment companies, broker-dealers and tax-exempt
organizations). In addition, the discussion does not apply to holders
of Claims and Interests that are not “U.S. Persons” (as such phrase is defined
in the Tax Code). The use of the terms “holder” or “U.S. holder”
herein shall refer to a “holder of a Claim or Interest that is a U.S.
Person.”
The
following discussion is a general summary of certain federal income tax aspects
of the Plan to U.S. holders, and should not be relied upon for purposes of
determining the specific tax consequences of the Plan with respect to a
particular holder of a Claim or Interest.
EACH
HOLDER OF A CLAIM OR INTEREST AFFECTED BY THE PLAN SHOULD CONSULT HIS OR HER OWN
TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE PLAN WITH RESPECT TO
THAT HOLDER’S CLAIM OR INTEREST. THIS INFORMATION MAY NOT BE USED OR
QUOTED IN WHOLE OR IN PART IN CONNECTION WITH ANY OFFERING FOR SALE OF
SECURITIES.
TO ENSURE
COMPLIANCE WITH IRS CIRCULAR 230, HOLDERS OF CLAIMS AND ANY INTERESTS ARE HEREBY
NOTIFIED THAT (a) ANY DISCUSSION OF TAX ISSUES CONTAINED OR REFERRED TO IN THIS
DISCLOSURE STATEMENT IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED,
FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER THE TAX CODE,
AND (b) THIS DISCUSSION WAS WRITTEN IN CONNECTION WITH THE PROMOTION OF THE
PLAN.
A.
|
TAX
CONSEQUENCES TO THE DEBTORS
|
The
Debtors may realize substantial taxable gain and cancellation of debt (“COD”)
income. In general, COD income is the amount by which the face amount
of the discharged indebtedness (reduced by any unamortized discount) exceeds any
consideration given in exchange therefor.
83
In
general, a taxpayer is not required to include COD income in gross income to the
extent that the taxpayer is either insolvent or under the jurisdiction of a
court in a Title 11 bankruptcy proceeding and the discharge of debt occurs
pursuant to such proceeding. Instead, the Tax Code provides that a
taxpayer in a bankruptcy proceeding must, subject to certain limitations, reduce
its tax attributes (including, but not limited to, net operating loss (“NOL”) carryforwards,
current year NOLs, tax credits, and tax basis in assets) by the amount of the
COD income. To the extent the amount of COD exceeds the tax
attributes available for reduction, any remaining COD income is discharged with
no further tax cost to the taxpayer. Parties should consult their own
tax advisors.
In
addition, to the extent that a Debtor satisfies recourse debt with the
underlying collateral, the Debtor generally will recognize gain upon the
disposition of such property based on an amount realized equal to the fair
market value of such property over the Debtor’s adjusted tax basis in such
property, with any balance of the debt in excess of the fair market value of the
property (less any other consideration paid to discharge such debt) treated as
COD income. By contrast, to the extent that nonrecourse debt is
satisfied with the underlying collateral, a Debtor generally will recognize gain
upon the disposition of property based on an amount realized equal to the
nonrecourse debt balance over the Debtor’s adjusted tax basis in such
property.
84
B.
|
TAX
CONSEQUENCES TO CERTAIN HOLDERS OF CLAIMS AND
INTERESTS
|
1.
|
General
Tax Consequences to Holders of Allowed
Claims
|
The U.S.
federal income tax consequences to holders of Allowed Claims arising from the
distributions to be made in satisfaction of their Claims pursuant to the Plan
may vary, depending upon, among other things: (i) the manner in which a holder
acquired an Allowed Claim; (ii) the type of consideration received by the holder
of an Allowed Claim in exchange for the interest it holds; (iii) the nature of
the indebtedness owed to it; (iv) whether the holder previously claimed a bad
debt or worthless securities deduction in respect of the Allowed Claim; (v)
whether the holder of the Allowed Claim reports income on the accrual or cash
basis; and (vi) whether the holder receives distributions in more than one
taxable year. In addition, where gain or loss is recognized by a
holder, the character of such gain or loss as long-term or short-term capital
gain or loss or as ordinary income or loss will be determined by a number of
factors, including the tax status of the holder, whether the Allowed Claim
constitutes a capital asset in the hands of the holder and how long it has been
held or is treated as having been held, and whether the Allowed Claim was
acquired at a market discount.
2.
|
Market
Discount
|
A holder
that purchased its Allowed Claim from a prior holder at a discount to the
then-adjusted issue price of such Allowed Claim may be subject to the market
discount rules of the Tax Code. Under those rules, assuming the
holder has not made an election to amortize the market discount into income on a
current basis, any gain recognized on the exchange of such Allowed Claim
(subject to a de minimis rule and exceptions for certain nonrecognition
transactions) generally would be characterized as ordinary income to the extent
of the accrued market discount on such Allowed Claim as of the date of the
exchange. Holders of Allowed Claims should consult their tax advisors
as to the tax consequences of the market discount rules, including, without
limitation, the possible application of such rules on the exchange of Allowed
Claims for equity.
85
3.
|
Accrued
Interest
|
If and to
the extent a holder receives consideration in satisfaction of accrued interest
or original issue discount (“OID”), such amount
generally will be taxable to the holder as interest income (if not previously
included in the holder’s gross income). While a holder generally
recognizes a deductible loss to the extent any accrued interest claimed was
previously included in its gross income and is not paid in full, it is unclear
whether a holder of an Allowed Claim could be required to recognize a capital
loss, rather than an ordinary loss, with respect to any previously included OID
that is not paid in full. All holders of Allowed Claims should
consult their tax advisors as to the tax consequences of the allocation of
consideration between principal and interest.
|
4.
|
Holders
of Tranche B Loan Claims and Pre-Petition Debenture Secured
Claims
|
The
exchange of Tranche B Loan Claims and Pre-Petition Debenture Secured Claims for
New Equity generally should not result in gain or loss to the holders of Tranche
B Loan Claims and Pre-Petition Debenture Secured Claims (subject to possible
application of the market discount rules). A holder’s initial tax
basis in the New Equity will equal such holder’s adjusted basis in the Claims
exchanged for the New Equity. The treatment of any OID and accrued
but unpaid interest should be determined in the manner as described
above. Holders of Tranche B Loan Claims and Pre-Petition Debenture
Secured Claims should consult their own tax advisors as to specific matters that
may be relevant to such holders
86
|
5.
|
Holders
of Administrative Expense Claims, Priority Tax Claims, Priority Non-Tax
Claims, and Unsecured Claims
|
Under the
Plan, Holders of Administrative Expense Claims, Priority Tax Claims, Priority
Non-Tax Claims, and Unsecured Claims generally will be paid any Cash
distribution either on the Effective Date or over a period of
time. Accordingly, a holder of Administrative Expense Claims,
Priority Tax Claims, Priority Non-Tax Claims, or Unsecured Claims generally
should realize gain or loss in an amount equal to the difference between (i) the
amount realized by the holder in satisfaction of its Claim (other than in
respect of any Claim for accrued but unpaid interest, and excluding any portion
required to be treated as imputed interest due to the post-Effective Date
distribution of such consideration), and (ii) the holder’s adjusted tax basis in
its Claim (excluding any portion attributable to an Claim for accrued but unpaid
interest). The amount realized by a holder should equal the sum of
the amount of any Cash and the fair market value of any other property received
by the holder. It is possible that any loss or a portion of any gain
realized by such a holder may be deferred until the holder has received its
final distribution. A holder’s tax basis in any property received in
satisfaction of a Claim generally should equal the fair market value of such
property, and the holder’s holding period for the property generally should
begin the day following the acquisition of the property. Furthermore,
the holders’ gain or loss, the character of such gain or loss, the application
of the market discount rules, and the treatment of accrued but unpaid interest
generally should be determined in the same manner as described
above. Any holders that receive equity in exchange for their Claims
will be subject to the tax consequences discussed above.
6.
|
Information
Reporting and Withholding
|
All
distributions to holders of Allowed Claims under the Plan are subject to any
applicable withholding obligations. Under U.S. federal income tax
law, certain interest, dividends and other reportable payments may be subject to
“backup withholding” at the then-applicable rate. Backup withholding
generally applies if the holder: (i) fails to furnish its social
security number or other taxpayer identification number (“TIN”), (ii) furnishes
an incorrect TIN, (iii) fails properly to report interest or dividends, or (iv)
under certain circumstances, fails to provide a certified statement, signed
under penalty of perjury, that the TIN provided is its correct number and that
it is a United States person that is not subject to backup
withholding. Backup withholding is not an additional tax but merely
an advance payment which may be refunded to the extent it results in an
overpayment of tax. Certain persons are exempt from backup
withholding, including, in certain circumstances, corporations and financial
institutions.
87
In
addition, from an information reporting perspective, Treasury regulations
generally require disclosure by a taxpayer on its U.S. federal income tax return
of certain types of transactions in which the taxpayer participated, including,
among other types of transactions, certain transactions that result in the
taxpayer’s claiming a loss in excess of specified thresholds. holders
of Claims and Interests are urged to consult their tax advisors regarding these
Treasury regulations and whether the transactions contemplated by the Plan would
be subject to these Treasury regulations and require disclosure on a holder’s
tax returns.
HOLDERS
OF CLAIMS AND INTERESTS SHOULD CONSULT THEIR TAX ADVISOR TO DETERMINE THE AMOUNT
AND TIMING OF ANY INCOME OR LOSS SUFFERED AS A RESULT OF THE CANCELLATION OF THE
CLAIMS OR INTEREST HELD BY SUCH PERSON, WHETHER SUCH INCOME OR LOSS IS ORDINARY
OR CAPITAL AND THE TAX EFFECT OF ANY RIGHT TO, AND RECEIPT OF DEFERRED
PAYMENT.
THE ABOVE
DISCUSSION IS FOR INFORMATION PURPOSES ONLY AND IS NOT TAX
ADVICE. THE TAX CONSEQUENCES ARE IN MANY CASES UNCERTAIN AND MAY VARY
DEPENDING ON A HOLDER’S INDIVIDUAL CIRCUMSTANCES. ACCORDINGLY, ALL
HOLDERS SHOULD CONSULT THEIR TAX ADVISORS ABOUT THE U.S. FEDERAL, STATE, LOCAL
AND NON-U.S. INCOME AND OTHER TAX CONSEQUENCES OF THE PLAN.
88
XII. CONFIRMATION
PROCEDURE
A.
|
VOTING
AND OTHER CONFIRMATION ISSUES
|
1.
|
Solicitation
of Votes
|
In accordance with sections 1126 and
1129 of the Bankruptcy Code, the holders of Claims in each of Classes 1, 2, 3,
4, 5, and 7 are entitled to vote to accept or reject the Plan in the manner and
to the extent set forth in the voting procedures contained in the Disclosure
Statement Order (the “Voting
Procedures”). Pursuant to such procedures, the holders of such
Claims may vote on the Plan so long as such Claim has not been disallowed and is
not the subject of an objection pending prior to the Voting Deadline
Date. Nevertheless, if a Claim is the subject of such an objection,
the holder thereof may vote if, on or prior to the Voting Deadline Date, such
holder obtains an order of the Bankruptcy Court, or the Bankruptcy Court
approves a stipulation between the Debtors and such holder fully or partially
allowing such Claim, whether for all purposes or for voting purposes
only.
Claims in Class 6 are
unimpaired. The holders of Allowed Claims in such Class are
conclusively presumed to have accepted the Plan, and the solicitation of
acceptances with respect to such Class is not required under section 1126(f) of
the Bankruptcy Code. Claims and Interests in Classes 8, 9 and 10 are
impaired and will not be receiving Distributions under the Plan. The
Holders of Claims and Interests in each of such Classes are conclusively
presumed to have rejected the Plan, and the solicitation of acceptances with
respect to each such Class is not required under section 1126(g) of the
Bankruptcy Code. If you hold a Claim or Interest in one of these
Classes, you will not be receiving a Ballot.
The holder of any Claim that, as of the
Voting Record Date, (i) has been Disallowed, (ii) is the subject of a pending
objection, or (iii) was listed on the Schedules as unliquidated in amount,
contingent or disputed (if no contrary proof of claim with respect to such Claim
has been timely filed) or a proof of claim with respect to which was filed on or
before the Bar Date pursuant to the provisions of the Bar Date Order and such
proof of claim asserts such Claim as unliquidated in amount, contingent or
disputed, will not be entitled to vote on the Plan, unless on or prior to the
Voting Record Date, the Bankruptcy Court enters a Final Order directing
otherwise; provided, however, that if only
a portion of such Claim has been Disallowed, objected to or listed or asserted
(as applicable) as unliquidated, contingent or disputed, such holder will be
entitled to vote the remainder of such Claim in an amount determined pursuant to
the Disclosure Statement Order.
89
As to classes of claims entitled to
vote on a plan, the Bankruptcy Code defines acceptance of a plan by a class of
claimholders as acceptance by holders of at least two-thirds in dollar amount
and more than one-half in number of the claims of that class that have timely
voted to accept or reject a plan. Detailed voting instructions will
be provided with the Ballot and will be set forth in the Voting
Procedures.
2.
|
Contents
of Solicitation Package
|
Each Holder of a Claim entitled to vote
on the Plan will receive the following materials (collectively, the “Solicitation
Package”):
|
(i)
|
the
Confirmation Hearing Notice;
|
|
(ii)
|
the
Plan;
|
|
(iii)
|
this
Disclosure Statement;
|
|
(iv)
|
the
Ballot and Ballot return envelope postage-paid;
and
|
|
(v)
|
such
other information as the Bankruptcy Court may direct or
approve.
|
|
3.
|
Temporary
Allowance of Claims for Voting
Purposes
|
Holders
of Claims that are the subject of an objection filed no later than the Vote
Deadline Date will not be entitled to vote unless: (i) such claim is temporarily
allowed by the Court for voting purposes only pursuant to Bankruptcy Rule
3018(a), after a Claims Estimation Motion (as defined in the Disclosure
Statement Order) is brought by such holder no later than seven (7) days prior to
the Voting Deadline Date, notice is provided and a hearing is held prior to the
Confirmation Hearing. If an objection to a Claim requests that such
claim be reclassified and/or allowed in a fixed, reduced amount, such Claimant’s
Ballot will be counted in such reduced amount and/or as the reclassified
category.
90
4.
|
Voting
On and Confirmation of the Plan
|
The
Debtors submit this Disclosure Statement, pursuant to section 1125 of the
Bankruptcy Code, to all known Claimants whose Claims are impaired for the
purpose of disclosing that information which the Bankruptcy Court has determined
is material, important and necessary for such Claimants to arrive at a
reasonably informed decision in exercising their right to vote for acceptance or
rejection of the Plan.
In order
to confirm the Plan, the Bankruptcy Code requires that the Bankruptcy Court make
a series of determinations concerning the Plan, including that (i) the Plan has
classified Claims and Interests in a permissible manner, (ii) the Plan complies
with the technical requirements of chapter 11 of the Bankruptcy Code, (iii) the
Debtors have proposed the Plan in good faith, and (iv) the Debtors’ disclosures
as required by chapter 11 of the Bankruptcy Code have been adequate and have
included information concerning all payments made or promised by the Debtors or
the Debtors in connection with the Plan. The Debtors believe that all
of these requirements will have been met by the date of the Confirmation Hearing
and will seek rulings of the Bankruptcy Court to such effect at that
hearing.
The
Bankruptcy Code also requires that the Plan will have been accepted by the
requisite votes of Claimants (except to the extent that “cramdown” is available
under section 1129(b) of the Bankruptcy Code); that the Plan be feasible (that
is, confirmation of the Plan is not likely to be followed by liquidation or the
need for further financial reorganization); and that the Plan be in the “best
interests” of all impaired Claimants that do not vote to accept the Plan (that
is, that impaired Claimants which do not vote to accept the Plan will receive
pursuant to the Plan value at least equal to the value they would receive in a
liquidation of the Debtors under Chapter 7). To confirm the Plan, the
Bankruptcy Court must find that all of these requirements are
met. Thus, even if the Claimants accept the Plan by the requisite
votes, the Bankruptcy Court must make independent findings respecting the Plan’s
feasibility and whether it is in the best interests of the impaired dissenting
Claimants before it may confirm the Plan. These statutory conditions
to confirmation are discussed below.
91
Pursuant
to the provisions of the Bankruptcy Code, only holders of claims or interests in
classes of claims or interests that are impaired under the terms and provisions
of a chapter 11 plan and are to receive distributions thereunder are entitled to
vote to accept or reject the plan. Classes in which the holders of
claims or interests will not receive or retain any property under a Chapter 11
plan are deemed to have rejected the plan and are not entitled to vote to accept
or reject the plan. Classes of claims or interests in which the
holders of claims or interests are unimpaired under a Chapter 11 plan are deemed
to have accepted the plan and also are not entitled to vote to accept or reject
the plan.
Each
Impaired Class of Claims that is receiving a distribution under the Plan is
entitled to vote separately to accept or reject the Plan. The amount
of each Claim for voting purposes is determined as of the Voting Record Date as
follows:
|
·
|
The
Claim listed in a Debtor’s Schedule, provided that (i) such Claim is not
scheduled as contingent, unliquidated, undetermined or disputed and (ii)
no proof of claim has been timely filed (or otherwise deemed timely filed
by the Court under applicable law).
|
|
·
|
The
noncontingent and liquidated amount specified in a proof of claim timely
filed with the Voting Agent (as defined in the Disclosure Statement Order)
or the Court (or otherwise deemed timely filed by the Court under
applicable law) to the extent the proof of claim is not the subject of an
objection filed no later than [______], 2010 (the “Vote Objection
Deadline”) (or, if such claim has been resolved pursuant to a
stipulation or order entered by the Court, or otherwise resolved by the
Court, the amount set forth in such stipulation or
order).
|
92
|
·
|
The
amount temporarily allowed by the Court for voting purposes, pursuant to
Bankruptcy Rule 3018(a), provided that a motion is brought, notice is
provided and a hearing is held prior to the Confirmation Hearing (as
defined in the Disclosure Statement Order), in accordance with the
Bankruptcy Code, the Bankruptcy Rules and the Local
Rules.
|
With
respect to Ballots cast by alleged creditors who have timely filed proofs of
claim in wholly unliquidated, unknown or uncertain amounts that are not the
subject of an objection filed before the Vote Objection Deadline, such Ballots
will be counted in determining whether the numerosity requirement of section
1126(c) of the Bankruptcy Code has been met, but will not be counted in
determining whether the aggregate claim amount requirement has been
met.
With
respect to the Plan, any Creditor in an impaired Class (i) whose Claim has been
listed by the Debtors in the Schedules filed with the Bankruptcy Court (provided
that such Claim has not been scheduled as disputed, contingent or unliquidated),
or (ii) who filed a proof of claim on or before the Bar Date (or, if not filed
by such date, any proof of claim filed within any other applicable period of
limitations or with leave of the Bankruptcy Court), which Claim has not been
disallowed and is not the subject of an objection, is entitled to
vote. Holders of Claims that are disputed, contingent and/or
unliquidated are entitled to vote their Claims only to the extent that such
Claims are Allowed for the purpose of voting pursuant to an order of the
Bankruptcy Court.
After
carefully reviewing this Disclosure Statement, including any Exhibits, each
holder of an Allowed Claim or Interest entitled to vote may vote whether to
accept or reject the Plan. A Ballot for voting on the Plan
accompanies this Disclosure Statement. If you hold a Claim or
Interest in more than one Class and you are entitled to vote Claims or Interests
in more than one Class, you are entitled to receive a Ballot or Ballots which
will permit you to vote in all appropriate Classes.
93
Please
vote and return your Ballot to the Voting Agent as follows:
By
U.S. Mail, Delivery or Courier:
|
|
Kurtzman
Carson Consultants LLC
Attention:
Global Capacity Ballot Processing
2335
Alaska Avenue
El
Segundo, CA 90245
|
ANY
EXECUTED BALLOT THAT FAILS TO INDICATE AN ACCEPTANCE OR REJECTION OF THE PLAN
WILL NOT BE COUNTED. BALLOTS RETURNED TO THE DEBTORS’ VOTING AGENT BY
FACSIMILE TRANSMISSION OR ANY OTHER ELECTRONIC MEANS WILL NOT BE COUNTED BY THE
DEBTORS’ VOTING AGENT.
Ballots
must be received by the Voting Deadline. If a Ballot is received
after the Voting Deadline, it will not be counted unless otherwise agreed to by
the Debtors or ordered by the Bankruptcy Court. Complete the Ballot
by providing all the information requested, and sign, date and return the Ballot
by mail, overnight courier or personal delivery to the Debtors at the address
set forth above.
If you are entitled to vote on the Plan
and you did not receive a Ballot, received a damaged Ballot or lost your Ballot,
or if you have any questions concerning the procedures for voting on the Plan or
submitting your ballot, you may telephone the Voting Agent at the following
number:
1-866-381-9100.
|
5.
|
Acceptance
by Impaired Creditors
|
The
Bankruptcy Code requires, as a condition to confirmation, that, except as
described in the following section, each class of claims or equity interests
that is impaired under a plan, accept the plan. A class that is not
“impaired” under a plan is deemed to have accepted the plan and, therefore,
solicitation of acceptances with respect to such class is not
required. A class is “impaired” unless the plan: (i)
leaves unaltered the legal, equitable and contractual rights to which the claim
or the equity interest entitles the holder of such claim or equity interest;
(ii) cures any default and reinstates the original terms of such obligation; or
(iii) provides that, on the consummation date, the holder of such claim or
equity interest receives cash equal to the allowed amount of that claim or, with
respect to any equity interest, any fixed liquidation preference to which the
holder of such equity interest is entitled to any fixed price at which the
debtor may redeem the security.
94
Section
1126(c) of the Bankruptcy Code defines acceptance of a plan by a class of
impaired claims as acceptance by holders of at least two-thirds in dollar amount
and more than one-half in number of claims in that class, but for that purpose
counts only those who actually vote to accept or to reject the
plan. Thus, a class of claims will have voted to accept the plan only
if two-thirds in amount and a majority in number actually voting cast their
Ballots in favor of acceptance.
Pursuant
to section 1129 of the Bankruptcy Code, the holders of Claims in the those
Classes entitled to vote must accept the Plan in order for the Plan to be
confirmed without application of the “fair and equitable test” to such Classes
and without considering whether the Plan “discriminates unfairly” with respect
to such Classes, as both standards are described herein.
The
Debtors reserve the right to seek non-consensual confirmation of the Plan with
respect to any Class of Claims that is entitled to vote to accept or reject the
Plan if such class rejects the Plan.
|
6.
|
Confirmation
Without Acceptance by All Impaired
Classes
|
The Bankruptcy Code permits the
Bankruptcy Court to confirm a chapter 11 plan over the rejection or deemed
rejection of the plan by any class of claims or interests as long as the
standards in section 1129(b) of the Bankruptcy Code are met. This
power to confirm a plan over dissenting classes—often referred to as
“cramdown”—is an important part of the reorganization process. It
assures that no single group (or multiple groups) of claims or interests can
block a restructuring that otherwise meets the requirements of the Bankruptcy
Code and is in the interests of the other constituents in the
case. In addition, it is possible that any impaired Class may vote to
reject the Plan, in which case the Debtors will request a ruling that the Plan
meets the requirements of the Bankruptcy Code with respect to such
Class.
95
In the event one or more impaired
Classes of Claims votes to reject the Plan, and the Plan is not withdrawn, the
Debtors will seek to have the Plan approved and confirmed by the Bankruptcy
Court pursuant to section 1129(b) of the Bankruptcy Code.
Section 1129(b) of the Bankruptcy Code
allows a bankruptcy court to confirm a plan even if all other impaired classes
entitled to vote on the plan have not accepted it, provided that the
plan has been accepted by at least one impaired class. Pursuant to
section 1129(b) of the Bankruptcy Code, notwithstanding an impaired class’s
rejection or deemed rejection of the plan, such plan will be confirmed, at the
plan Debtors’s request, in a procedure commonly known as “cram down,” so long as
the plan does not “discriminate unfairly” and is “fair and equitable” with
respect to each class of claims or equity interests that is impaired under, and
has not accepted, the plan.
|
a.
|
No
Unfair Discrimination
|
This test
applies to classes of claims or equity interests that are of equal priority and
are receiving different treatment under the Plan. The test does not
require that the treatment be the same or equivalent, but that such treatment be
“fair.” In general, bankruptcy courts consider whether a plan
discriminates unfairly in its treatment of classes of claims of equal rank
(e.g., classes
of the same legal character). Bankruptcy courts will take into
account a number of factors in determining whether a plan discriminates
unfairly, and, accordingly, a plan could treat two classes of unsecured
creditors differently without unfairly discriminating against either
class.
|
b.
|
Fair
and Equitable Test
|
This test
applies to classes of different priority and status (e.g., secured versus
unsecured) and includes the general requirement that no class of claims receive
more than 100% of the amount of the allowed claims in such class. As
to the non-accepting class, the test sets different standards depending on the
type of claims or equity interests in such class.
96
Secured
Claims: The condition that a plan be “fair and equitable” to a
non-accepting class of secured claims includes the requirements
that: (A)(i) the holders of such secured claims retain the liens
securing such claims to the extent of the allowed amount of the claims, whether
the property subject to the liens is retained by the debtor or transferred to
another entity under the plan; and (ii) each holder of a secured claim in the
class receives deferred cash payments totaling at least the allowed amount of
such claim with a present value, as of the effective date of the plan, at least
equivalent to the value of the secured claimant’s interest in the debtor’s
property subject to the liens; (B) the plan provides for the sale, subject to
Section 363(k) of the Bankruptcy Code, of any property subject to the liens
securing such claims, free and clear of such liens, with such liens attaching to
the proceeds of the sale; or (C) the holders of such secured claims realize the
indubitable equivalent of such claims.
Unsecured
Claims: The condition that a plan be “fair and equitable” to a
non-accepting class of unsecured claims includes the following requirement that
either: (a) the plan provides that each holder of a claim of such
class receive or retain, on account of such claim, property of a value, as of
the effective date of the plan, equal to the allowed amount of such claim; or
(b) the holder of any claim or any equity interest that is junior to the claims
of such class will not receive or retain under the plan, on account of such
junior claim or junior equity interest, any property.
Equity
Interests: The condition that a plan be “fair and equitable”
to a non-accepting class of equity interests includes the requirements that
either: (a) the plan provides that each holder of an equity interest
in that class receives or retains under the plan on account of that equity
interest property of a value, as of the effective date of the plan, equal to the
greater of: (i) the allowed amount of any fixed liquidation
preference to which such holder is entitled; (ii) any fixed redemption price to
which such holder is entitled; or (iii) the value of such interest; or (b) if
the class does not receive the amount as required under (a) hereof, no class of
equity interests junior to the non-accepting class may receive a distribution
under the plan.
97
The
Debtors believe that the Plan satisfies the “fair and equitable” requirement
notwithstanding that certain classes are deemed to reject the Plan because no
class that is junior to these Classes will receive or retain any property on
account of Claims or Interests in such Class. In the event that all
impaired Classes do not accept the Plan, the Debtors believe that the Plan and
the treatment of all Classes of Claims and Interests under the Plan satisfy the
foregoing requirements for nonconsensual confirmation of the Plan with respect
to any Class which does not accept the Plan
|
7.
|
Feasibility
|
The Bankruptcy Code requires that the
Debtors demonstrate that confirmation of a plan is not likely to be followed by
liquidation or the need for further financial reorganization, unless provided
for in the Plan. In the event the Sale is consummated pursuant to
Section 363 of the Bankruptcy Code and outside of the Plan, the Plan provides
for the liquidation of the Debtors. In the event the Sale is
consummated pursuant to a Restructuring Election, based upon the Financial
Projections annexed hereto as Exhibit “B”, the Debtors
believe that confirmation of the Plan is not likely to be followed by
liquidation or the need for further reorganization.
|
8.
|
Best
Interests Test/Liquidation Analysis
|
With respect to each impaired class of
claims and interests, confirmation of the plan requires that each holder of a
claim or interest either (i) accept the plan, or (ii) receive or retain under
the plan property of a value, as of the effective date, that is not less than
the value such holder would receive or retain if the debtors were liquidated
under chapter 7 of the Bankruptcy Code. This requirement is referred
to as the “best interests test.” To determine what holders of Claims and
Interests of each impaired Class would receive if the Debtors were liquidated
under chapter 7, the Bankruptcy Court must determine the dollar amount that
would be generated from the liquidation of the Debtors’ assets and properties in
the context of a chapter 7 liquidation case. The Debtors’ liquidation
analysis is attached hereto as Exhibit “C”. As set forth
therein, the proposed Plan Distributions exceed the distribution that Claimants
would receive in a liquidation of the Debtors’ Estates.
98
B.
|
THE
CONFIRMATION HEARING ON THE PLAN
|
The Bankruptcy Code requires the
Bankruptcy Court, after notice, to hold a Confirmation Hearing with respect to
the accompanying Plan. The Confirmation Hearing in respect of the
Plan has been scheduled for the date and time set forth in the accompanying
notice before the Honorable Peter J. Walsh, United States Bankruptcy Judge for
the District of Delaware, United States Bankruptcy Court, 824 Market Street, 6th
Floor, Courtroom #2, Wilmington, Delaware 19801. The Confirmation Hearing may be
adjourned from time to time by the Bankruptcy Court without further notice other
than an announcement of the adjourned date made at the Confirmation Hearing or
posted at the courthouse at the Confirmation Hearing. Any objection
to confirmation must be made in writing and specify in detail the name and
address of the objector, all grounds for the objection and the amount of the
Claim or a description of the interest in the Debtors held by the objector, and
must be made in accordance with any pre-trial or scheduling orders entered by
the Bankruptcy Court. Any such objections must be filed in the record
of the Chapter 11 Cases on or before the date and time set forth in the
accompanying notice.
At the Confirmation Hearing, the
Bankruptcy Court will confirm the Plan if the requirements of Section 1129 of
the Bankruptcy Code are met. Among the requirements for confirmation
of a plan are that the plan is (i) accepted by all impaired classes of claims
or, if rejected by an impaired class, that the plan "does not discriminate
unfairly" and is "fair and equitable" as to such class, (ii) feasible, and (iii)
in the "best interests" of creditors that are impaired under the
plan.
99
C.
|
CERTAIN
RISK FACTORS TO BE CONSIDERED
|
HOLDERS
OF CLAIMS AGAINST AND INTERESTS IN THE DEBTORS SHOULD READ AND CONSIDER
CAREFULLY THE INFORMATION SET FORTH IN THIS DISCLOSURE STATEMENT, THE PLAN (AND
ANY DOCUMENTS DELIVERED TOGETHER HEREWITH AND/OR INCORPORATED BY REFERENCE),
BEFORE VOTING TO ACCEPT OR REJECT THE PLAN. THESE RISK FACTORS SHOULD
NOT BE REGARDED AS CONSTITUTING THE ONLY RISKS INVOLVED IN CONNECTION WITH THE
PLAN AND ITS IMPLEMENTATION.
1.
|
Certain
Bankruptcy Considerations
|
Although the Debtors believe that the
Plan satisfies all requirements necessary for confirmation by the Bankruptcy
Court, there can be no assurance that the Bankruptcy Court will reach the same
conclusion. Moreover, there can be no assurance that modifications to
the Plan will not be required for confirmation or that such modifications would
not necessitate the re-solicitation of votes.
2.
|
Risk
of Liquidation of the Debtors’
Estates
|
If the Plan is not confirmed and
consummated, there can be no assurance that Debtors’ Chapter 11 Cases will
continue as chapter 11 cases rather than be converted to Chapter 7 liquidations,
or that any alternative plan of reorganization would be on terms as favorable or
more favorable to holders of Claims and Interests as the terms of the
Plan.
3.
|
Risk
of Non-Occurrence of the Effective
Date
|
The occurrence of the Effective Date is
conditioned upon the happening of certain events. There is no
guaranty that all of these events will occur or that those that do not occur
will be waived.
100
4.
|
Performance
of Plan Obligations by the Liquidating
Debtors
|
The Debtors believe that the
Liquidating Debtors and the Plan Administrator can successfully perform all of
their obligations under the Plan. However, there is no assurance that
the Liquidating Debtors and the Plan Administrator will do so. If the
Liquidating Debtors and the Plan Administrator are unable to comply with their
obligations under the Plan, then there could possibly be a subsequent bankruptcy
of the Liquidating Debtors.
|
5.
|
Debtors
Cannot State with any Degree of Certainty What Recovery Will Be Available
to Holders of Allowed Claims
|
No fewer
than two unknown factors make certainty of creditor recoveries under the Plan
impossible. First, the Debtors cannot know with any certainty, at
this time, the number or amount of Claims that will ultimately be
Allowed. Second, the Debtors cannot know with any certainty, at this
time, the value of the securities to be issued under the Plan. The
Debtors’ estimated recoveries to holders of Allowed Claims receiving equity as
part of their distributions are not intended to represent the market value of
such securities. The estimated recoveries are based on numerous
assumptions, including, without limitation: (i) the successful
reorganization of the Debtors; (ii) Newco or the Reorganized Debtors’ ability to
achieve the operating and financial results included in the Financial
Projections annexed hereto as Exhibit B; (iii) Newco or the Reorganized Debtors’
ability to maintain adequate liquidity to fund operations; and (iv) the
assumption that capital and equity markets remain consistent with current
conditions.
|
6.
|
Business
Risks (Inherent Uncertainty of Financial
Projections)
|
Although
the Financial Projections set forth in Exhibit B suggest that Newco or the
Reorganized Debtors will be able to meet all of its financial obligations
following confirmation of the Plan, these projections are dependent upon certain
assumptions related to market conditions, which may or may not prove
accurate.
The
current crisis in the global credit and financial markets, and the inability of
corporate borrowers to access the debt markets, may materially and adversely
affect Newco or the Reorganized Debtors’ ability to obtain sufficient financing
to operate its businesses on a going forward basis.
101
|
7.
|
Financial
Projections and Other Forward Looking Statements Are Not Assured, Are
Subject to Inherent Uncertainty Due to the Numerous Assumptions Upon Which
They Are Based and, as a Result, Actual Results May
Vary
|
Any
financial information that may be contained in this Disclosure Statement has not
been audited. In preparing this Disclosure Statement, the
Debtors relied on financial data derived from the Debtors’ books and records
that was available at the time of such preparation. Although the
Debtors have used its reasonable business judgment to ensure the accuracy of the
financial information provided in this Disclosure Statement, and while the
Debtors believe that such financial information fairly reflects the financial
condition of the Debtors, the Debtors are unable to warrant or represent that
the financial information contained herein and attached hereto is without
inaccuracies.
This
Disclosure Statement contains various projections concerning the financial
results of Newco or the Reorganized Debtors’ operations, including the Financial
Projections, that are, by their nature, forward looking, and which projections
are necessarily based on certain assumptions and estimates. Should
any or all of these assumptions or estimates ultimately prove to be incorrect,
the actual future experiences of Newco or the Reorganized Debtors may turn out
to be different from the Financial Projections.
Due to
the inherent uncertainties associated with projecting financial results
generally, the projections contained in this Disclosure Statement will not be
considered assurances or guarantees of the amount of funds or the amount of
Claims that may be Allowed in the various Classes. While the Debtors
believe that the financial projections contained in this Disclosure Statement
are reasonable, there can be no assurance that they will be
realized.
102
D.
|
DISCLAIMERS
AND ENDORSEMENTS
|
|
1.
|
Generally
|
This Disclosure Statement contains
information about the Plan. Creditors and the holders of Interest are
urged to study the text of the Plan carefully to determine the Plan's impact on
their claims or interests and to consult with their financial, tax and legal
advisors. Certain statements and assertions in this Disclosure
Statement may be subject to dispute by parties in interest.
|
2.
|
Information Contained Herein Is
for Soliciting Votes and Exercising Subscription
Rights
|
The
information contained in this Disclosure Statement is for the purposes of
soliciting acceptances of the Plan and may not be relied upon for any other
purposes.
|
3.
|
This
Disclosure Statement Was Not Approved by the United States Securities and
Exchange Commission
|
This Disclosure Statement was not filed
with the United States Securities and Exchange Commission under the Securities
Act or applicable state securities laws. Neither the United States
Securities and Exchange Commission nor any state regulatory authority has passed
upon the accuracy or adequacy of this Disclosure Statement, or the exhibits or
the statements contained herein, and any representation to the contrary is
unlawful.
|
4.
|
Reliance
on Exemptions from Registration Under the Securities
Act
|
This Disclosure Statement has been
prepared pursuant to section 1125 of the Bankruptcy Code and Bankruptcy Rule
3016(b) and is not necessarily in accordance with federal or state securities
laws or other similar laws. The issuance of equity under the Plan has
not been registered under the Securities Act or similar state securities or
“blue sky” laws. To the maximum extent permitted by section 1145 of
the Bankruptcy Code, the Securities Act and other applicable non-bankruptcy law,
the issuance of equity under the Plan will be exempt from registration under the
Securities Act by virtue of section 1145 of the Bankruptcy
Code.
103
|
5.
|
No
Legal or Tax Advice Is Provided to You by this Disclosure
Statement
|
This
Disclosure Statement is not legal advice to you. The contents
of this Disclosure Statement should not be construed as legal, business or tax
advice. Each holder of a Claim or an Interest should consult his or
her own legal counsel and accountant with regard to any legal, tax and other
matters concerning his or her Claim or Interests. This Disclosure
Statement may not be relied upon for any purpose other than to determine how to
vote on the Plan.
|
6.
|
No
Admissions Made
|
The
information and statements contained in this Disclosure Statement will neither
(a) constitute an admission of any fact or liability by any entity nor (b) be
deemed evidence of the tax or other legal effects of the Plan on the
Reorganized Debtors, the Liquidating Debtors or any other parties in
interest.
|
7.
|
Failure
to Identify Claims or Projected
Objections
|
No reliance should be placed on the
fact that a particular claim or projected objection to a particular Claim or
Interest is, or is not, identified in this Disclosure Statement. The
Debtors may seek to object to Claims and Interests before or after the
confirmation or Effective Date of the Plan irrespective of whether this
Disclosure Statement identifies such Claims or objections to such
Claims.
|
8.
|
No
Waiver of Right to Object or Right to Recover Transfers and
Assets
|
The vote by a holder of an Allowed
Claim for or against the Plan does not constitute a waiver or release of any
Claims, Causes of Action, or rights of the Debtors, Newco, Liquidating Debtors
or Reorganized Debtors (or any party in interest, as the case may be) to object
to that holder’s Allowed Claim, or recover any preferential, fraudulent or other
voidable transfer of assets, regardless of whether any Claims or Causes of
Action are specifically or generally identified herein.
104
|
9.
|
Potential
Exists for Inaccuracies, and the Debtors have No Duty to
Update
|
The statements contained in this
Disclosure Statement are made by the Debtors as of the date hereof, unless
otherwise specified herein, and the delivery of this Disclosure Statement after
that date does not imply that there has not been a change in the information set
forth herein since that date. While the Debtors have used their
reasonable business judgment to ensure the accuracy of all of the information
provided in this Disclosure Statement and in the Plan, the Debtors nonetheless
cannot, and do not, confirm the current accuracy of all statements appearing in
this Disclosure Statement. Further, although the Debtors may subsequently
update the information in this Disclosure Statement, it has no affirmative duty
to do so unless ordered to do so by the Bankruptcy Court.
|
10.
|
No
Representations Outside this Disclosure Statement Are
Authorized
|
No representations concerning or
relating to the Debtors, these Chapter 11 Cases or the Plan are authorized by
the Bankruptcy Court or the Bankruptcy Code, other than as set forth in this
Disclosure Statement. Any representations or inducements made to
secure your acceptance or rejection of the Plan that are other than as contained
in, or included with, this Disclosure Statement, should not be relied upon by
you in arriving at your decision. You should promptly report
unauthorized representations or inducements to the counsel to the Debtors and
the United States Trustee.
XIII. ALTERNATIVES
TO CONFIRMATION AND
CONSUMMATION OF
PLAN
A.
|
GENERAL
|
If the
Plan is not confirmed, the potential alternatives include (i) alternative plans
of reorganization under chapter 11, (ii) dismissal of the Chapter 11 Cases, or
(iii) conversion of the Chapter 11 Cases to cases under chapter 7 of the
Bankruptcy Code.
105
B.
|
ALTERNATIVE
PLANS OF REORGANIZATION
|
If the
Plan is not confirmed, the Debtors may attempt to formulate a different plan of
reorganization. Such a plan might involve either a reorganization and
continuation of the Debtors’ businesses or an orderly liquidation of its
assets.
The
Debtors have concluded that the Plan enables creditors to realize the most value
under the circumstances and that Claimants would receive greater recoveries
under the Plan than under a different business reorganization scenario or in a
chapter 7 liquidation.
C.
|
SALE
OF ASSETS UNDER SECTION 363
|
The Plan
contemplates consummation of the Sale pursuant to section 363 of the Bankruptcy
Code, with the proceeds of such Sale distributed under the Plan, although the
Purchaser has the option to proceed with a reorganization of the
Debtors. If the Plan is not confirmed, the section 363 Sale will be
pursued by Purchaser outside of the Plan. After such 363 sale is
consummated, the Debtors may proceed with confirmation of the Plan, a chapter 11
plan may be filed with the Bankruptcy Court with respect to any remaining assets
or the Chapter 11 Cases may be converted to cases under chapter 7 of the
Bankruptcy Code in which case a trustee would be elected or appointed to
liquidate the Debtors’ assets.
XIV. CONCLUSION AND
RECOMMENDATION
The Debtors believe that confirmation
and implementation of the Plan are preferable to any alternative and that the
Plan provides the best alternative for the Debtors to emerge from the Chapter 11
Cases. Any other alternative would involve significant delay,
litigation, uncertainty, and substantial additional administrative
costs.
[signatures
on next page]
106
Dated August 11,
2010
/s/
George King
|
||
Global
Capacity Holdco, LLC
|
||
By:
|
George
King
|
/s/
George King
|
||
Global
Capacity Group, Inc.
|
||
By:
|
George
King
|
/s/
George King
|
||
20/20
Technologies, Inc.
|
||
By:
|
George
King
|
/s/
George King
|
||
Capital
Growth Systems, Inc.
|
||
By:
|
George
King
|
/s/
George King
|
||
Centre
Path, Inc.
|
||
By:
|
George
King
|
/s/
George King
|
||
Global
Capacity Direct, LLC f/k/a
Vanco
Direct USA, LLC
|
||
By:
|
George
King
|
/s/
George King
|
||
20/20
Technologies I, LLC
|
||
By:
|
George
King
|
/s/
George King
|
||
NEXVU
Technologies, LLC
|
||
By:
|
George
King
|
107
/s/
George King
|
||
FNS
2007, Inc. fka Frontrunner
Network
Systems, Corp
|
||
By:
|
George
King
|
/s/
George King
|
||
Capital
Growth Acquisition, Inc.
|
||
By:
|
George
King
|
108
WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC
|
Francis A. Monaco, Jr.
|
Francis
A. Monaco, Jr. (DE Bar No. 2078)
|
Mark
L. Desgrosseilliers (DE Bar No. 4083)
|
Thomas
M. Horan (DE Bar No. 4641)
|
222
Delaware Avenue, Suite 1501
|
Wilmington,
DE 19801
|
Telephone:
(302) 252-4320
|
Facsimile:
(302) 252-4330
|
-and-
|
Douglas
S. Draper (La. Bar No. 5073)
|
William
H. Patrick (La. Bar No. 10359)
|
Tristan
Manthey (La. Bar No. 24539)
|
HELLER
DRAPER HAYDEN PATRICK & HORN, LLC
|
650
Poydras Street – Suite 2500
|
New
Orleans, LA 70130
|
Telephone:
(504) 299-3300
|
Facsimile:
(504) 299-3399
|
109