HomeMy WebLinkAboutJoint Plan of Reorganization of GDCGeneral Developmen Norporation
Community Operations
5240 BABCOCK STREET NE, #202
PALM BAY. FLORIDA 32905-6099
June 6, 1991
Mr. Robb McClary
City Manager
City of Sebastian
P.O. Box 780127
Sebastian, FL 32978
Dear Robb:
50C
(407)724-2000
(407) 569-4300 (Vero Beach)
Please find enclosed for your review a copy of the
"Joint Plan of Reorganization of General Development
Corporation". The Plan was filed on June 3, 1991.
If you have any questions please give me a call.
Sincerely,
George R. c
r RK z cki
y
Director of Community Operations
GRK:cam
Enclosure
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 90-12231-BKC-AJC
CHAPTER 11
JOINTLY ADMINISTERED
)
In re )
)
GENERAL DEVELOPMENT )
CORPORATION, et al., )
Debtors. )
JOINT PLAN OF REORGANIZATION OF
GENERAL DEVELOPMENT CORPORATION
THIS JOINT PLAN IS SUBJECT TO AMENDMENT, WHICH
MAY INVOLVE SIGNIFICANT REVISIONS. NO ASSURANCE
CAN BE GIVEN THAT ANY DISTRIBUTION WILL BE ON THE
TERMS SET FORTH IN THIS JOINT PLAN. NO CREDITOR
OR OTHER PARTY IN INTEREST SHOULD CONSIDER THIS
JOINT PLAN BINDING ON ANY PARTY IN THIS PROCEEDING.
NO DISCLOSURE STATEMENT HAS BEEN FILED IN CONNECTION
WITH THIS JOINT PLAN. NO SOLICITATION OF ACCEPTANCES
OF THIS JOINT PLAN IS PERMITTED UNTIL A DISCLOSURE
STATEMENT IS FILED AND APPROVED BY THE BANKRUPTCY
COURT PURSUANT TO SECTION 1125 OF THE BANKRUPTCY CODE.
May 31, 1991
TABLE OF CONTENTS
Page
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CLASSIFICATION OF CLAIMS AND INTERESTS . . . . . . . . 20
2.1 Class 1
-- Secured CR
Lender Claims . .
20
2.1.1
Class
1.1 --
Bank of Boston Secured
. . . . . . . . . . . .
23
Claim.
. .
. . . . . . . . . . .
20
2.1.2
Class
1.2 --
Daiwa Secured Claim
21
2.1.3
Class
1.3 --
Greyhound Secured
23
2.2.4
Claims.
. .
. . . . . . . . . . .
21
2.1.4
Class
1.4 --
Harbor Federal Secured
24
2.2.5
Claim.
2.5
. . . . . . . .
21
2.1.5
Class
1.5 --
Merrill Lynch Secured
Claims.
. .
. . . . . . . . .
22
2.1.6
Class
1.6 --
NBC Secured Claim . .
22
2.1.7
Class
1.7 --
Oxford Secured Claim
22
2.2 Class 2 -- Other Secured Claims . . . . . . 23
2.2.1
Class
2.1
-- Mechanic's and Site
Liens.
.
. . . . . . . . . . . .
23
2.2.2
Class
2.2
-- Section 365(1) Claims
23
2.2.3
Class
2.3
-- Secured Property Tax
Claims ..
. . . . . . .
23
2.2.4
Class
2.4..--
Capitalized
LeaselEquipment
Financing Claims
24
2.2.5
Class
2.5
-- Other Secured Claims
24
2.3 Class 3 -- Priority Claims . . . . . . . . . 24
2.3.1 Class 3.1 -- Wacres, Salaries or
Commissions . . . .. .25
2.3.2 Class 3.2 -- Employee Benefit Plan
Contributions . . . . . . . . . . 25
2.3.3 Class 3.3 -- Consumer Deposits . . 25
2.4 Class 4 -- Revolving Credit Claims . . . . . 25
2.5 Class 5 -- Letter of Credit Claims . . . . . 25
2.6 Class 6 -- Unsecured CR Lender Claims . . . 25
- i -
ARTICLE III
•
Page
2.7 Class 7 -- Prudential Senior Subordinated Note
Claims. . . . . . . . . . . . . . . . . . . 25
2.8 Class 8 -- Public Senior Subordinated Note
Claims . . . . . . . . . . . . . . . . . . . 25
2.9 Class 9 -- Junior Subordinated Debenture
Claims. . . . . . . . . . . . . . . . . . . 26
2.10 Class 10 -- Home and Homesite Purchaser
. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
TREATMENT OF ADMINISTRATIVE AND TAX CLAIMS . . . . . . 28
3.1 DIP Financing . . . . . . . . . . . . . . . 28
3.2 Administrative Claims . . . . . . . . . . . 29
3.2.1 Non -ordinary Course . . . . . . . 29
3.2.2 Ordinary Course . . . . . . . . . 30
3.3 Tax Claims . . . . . . . . . . . . . . . . . 30
Claims.
. . . . . . . . . . . . . . . . . .
26
2.11
Class
11
-- Government Development Claims
26
2.12
Class
12
-- General Unsecured Claims . . . .
26
2.13
Class
13
-- Convenience Class . . . . . . .
26
2.14
Class
14
-- Utility Claims . . . . . . . . .
26
2.15
Class
15
-- Retiree Claims . . . . . . . . .
27
2.16
Class
16
-- Non -compensatory Claims . . . .
27
2.17
Class
17
-- Securities Violation Claims . .
27
2.18
Class
18
-- Shareholder Interests . . . . .
28
2.18.1
Preferred Stock . . . . . . . . .
28
2.18.2
Common Stock . . . . . . . . . . .
28
. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
TREATMENT OF ADMINISTRATIVE AND TAX CLAIMS . . . . . . 28
3.1 DIP Financing . . . . . . . . . . . . . . . 28
3.2 Administrative Claims . . . . . . . . . . . 29
3.2.1 Non -ordinary Course . . . . . . . 29
3.2.2 Ordinary Course . . . . . . . . . 30
3.3 Tax Claims . . . . . . . . . . . . . . . . . 30
•
Paae
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TREATMENT OF UNIMPAIRED CLASSES . . . . . . . . . . . 31
4.1 Class 2.4 -- Capitalized Leases/Ecruipment
Financing Claims . . . . . . . . . . . . . . 31
4.2 Class 2.5 -- Other Secured Claims . . . . . 31
4.3 Class 15 -- Retiree Claims'. . . . . . . . . 32
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TREATMENT OF IMPAIRED CLASSES . . . . . . . . . . . . 32
5.1 Class 1
-- Secured Claims of CR Lenders
33
5.1.1
Classes 1.1, 1.2, 1.4 and 1.6 --
Bank of Boston. Daiwa, Harbor
Federal and NBC Secured Claims
33
5.1.2
Class 1.3 -- Greyhound Secured
Claims
34
5.1.3
Class 1.5 -- Merrill Lynch Secured
Claims. . . . . . . . . . . .
38
5.1.4
Class 1.7 -- Oxford Secured Claim
40
5.2 Class 2
-- Secured Claims . . . . . . . . .
41
5.2.1
Class 2.1 -- Mechanic's and Site
Liens41
5.2.2
Class 2.2 - Certain Homesite
Purchasers. . . . . . . . . . . .
42
5.2.3
Class 2.3 -- Secured Property Tax
Claims . . . . . . . . . . . .
43
5.3 Class 3 --
Priority Claims . . . . . . .
43
5.3.1 Class 3.1 -- Wages, Salaries or
Commissions . . . . . . . . . . . 43
5.3.2 Class 3.2 -- Employee Benefit Plan
Contributions . . . . . . . . . . 44
5.3.3 Class 3.3 -- Consumer Deposits . . 44
Pacre
5.4
Classes 4,
5, 6, 7, 8, 9, 10, 11 and 12 --
Non -compensatory Claims . . .
. 61
Unsecured
Claim Classes . . . . . . . . . .
45
Securities Violation Claims . .
61
5.4.1
Aggregate Distributions . . . . .
45
5.4.2
Initial Allocations. . . . . . . .
46
5.5
Treatment
of Senior Debt Classes . . . . . .
46
5.5.1
Class 4 -- Revolving Credit Claims
46
5.5.2
Class 5 -- Letter of Credit Claims
48
5.5.3
Class 6 -- Unsecured CR Lender
Claims. . . . . . . . . . . . . .
48
5.6
Treatment
of Subordinated Debt Classes . . .
49
5.6.1
Class 7 -- Prudential Senior
Subordinated Note Claim . . .
49
5.6.2
Class 8 -- Public Senior
Subordinated Note Claims . . . . .
50
5.6.3
Class 9 -- Junior Subordinated
Debenture Claims . . . . . . .
54
5.6.4
Treatment of Senior Debt; Waiver of
Subordination . . . . . . . . . .
57
5.6.5
Interim Calculation Amount . . . .
59
5.7
Class 10 --
Home and Homesite Purchaser Claims
59
5.8
Class 11 --
Government Development Claims
59
5.9
Class 12 --
General Unsecured Claims . . . .
60
5.10
Class 13 --
Convenience Class . . . . . . .
60
5.11
Class 14 --
Utility Claims . . . . . . . .
61
5.12
Class
16 --
Non -compensatory Claims . . .
. 61
5.13
Class
17 --
Securities Violation Claims . .
61
5.14 Class 18 -- Shareholder Interests . . . . . 61
- iv -
t f
Page
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
TREATMENT OF EXECUTORY CONTRACTS AND LEASES . . . . . 61
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
BUSINESS AND OPERATIONS OF THE REORGANIZED COMPANY . . 62
7.1 Title to Assets and Organizational Structure 62
7.2 Authorized Activities . . . . . . . . . 64
7.3 Directors and Management . . . . . . . . . . 65
7.4 Compliance With Consent Judgment . . . . . . 65
7.5 Homesite Program . . . . . . . . . . . . 66
7.6 Improvement Obligations Agreement . . . . . 66
7.7 Utility Program . . . . . . . . . . . . . . 67
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
MEANS OF IMPLEMENTATION OF THE PLAN . . . . . . . . . 67
8.1 Funding of Plan . . . . . . . . . . . . . . 67
8.2 Estimation of Claims . . . . . . . . . . . . 68
8.3 Disbursing Agent . . . . . . . . . . . . . . . 68
8.3.1 Appointment . . . . . . . . . . . 68
8.3.2 Recordkeeping and Transfer Agent
Responsibilities . . . . . 69
8.3.3 Indentures . . . . . . . . . . . . 70
8.4 Creation of Disbursement Account . . . . . . 71
8.5 Issuance of New Senior Notes, New Cash Flow
Notes, and New Common Stock . . . . . . . . 71
8.6 Disbursements . . . . . . . . . . . . . . . 74
- v -
8.7 Disputed Claims Reserve . . . . . . . . . .
8.8 Reporting . . . . . . . . . . . . . . . . .
8.9 Estate Administration . . . . . . . . . . .
8.10 Registration Under Securities Exchange Act .
8.11 Discharge . . . . . . . . . . . . . . . . .
8.12 Cancellation of Indentures and Release of
Trustees . . . . . . . . . . . . . . . . . .
8.12.1 Public Senior Subordinated Notes .
8.12.2 Junior Subordinated Notes . . . .
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONDITIONS PRECEDENT TO EFFECTIVENESS OF PLAN . . . .
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RETENTION OF JURISDICTION . . . . . . . . . . . . . .
ARTICLE XI . . . . . . . . . . . . . .
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . .
11.1 Continued Role for Creditors' Committee . .
11.2 Limitation of Liability . . . . . . . . . .
11.3 Amendments of the Plan . . . . . . . . . .
11.4 Headings . . . . . . . . . . . . . . . . .
- vi -
ti
Page
76
77
78
79
79
80
80
82
83
83
85
85
87
87
87
87
87
88
4
In re 1
GENERAL DEVELOPMENT )
CORPORATION, et al., )
Debtors. )
0
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 90-12231-BKC-AJC
CHAPTER 11
JOINTLY ADMINISTERED
JOINT PLAN OF REORGANIZATION OF
GENERAL DEVELOPMENT CORPORATION
General Development Corporation and the Official
Unsecured Creditors' Committee in the above -referenced cases
hereby propose the following Plan of Reorganization for the
Debtor pursuant to Chapter 11 of the United States Bankruptcy
Code, 11 U.S.C. §§ 101, et sea.
ARTICLE I
DEFINITIONS
For the purposes of the Plan and the accompanying
Disclosure Statement, the following terms shall have the
respective meanings hereinafter set forth. Unless otherwise
defined herein, the terms used in the Plan have the same meaning
as in the Bankruptcy Code.
0
Administrative Claim means a Claim against the Debtor
for an administrative expense of a kind specified in Section
507(a)(1) of the Bankruptcy Code.
Affiliate shall have the meaning given such term in
Section 101(2) of the Bankruptcy Code.
Allowed Claim means
(1) any Claim based on an award pursuant to the
Restitution Program that is deemed allowed pursuant to the
Bankruptcy Court's Order Authorizing Debtor to Enter Plea Under
11 U.S.C. §§ 1107(a) and 1108, and to Compromise or Settle Under
Bankruptcy Rule 9019(a), dated September 28, 1990 as revised on
November 28, 1990;
(2) Claims to be identified which, by agreement of the
Debtor, the Creditors' Committee and the creditor in question,
shall be deemed finally allowed on the Effective Date, a list of
which shall be filed as a schedule to the Plan prior to the
Confirmation Date; or
(3) the amount of any Claim against the Debtor to the
extent that:
(a) a proof of claim has been (i) timely filed,_
(ii) deemed filed pursuant to Section 1111(a) of the
Bankruptcy Code, or (iii) late filed with leave of the
Bankruptcy Court after notice and opportunity for a
hearing given to the Debtor, the Creditors' Committee
- 2 -
•
•
and to all parties entitled to receive notice thereof;
and
(b) (i) no objection to such Claim was filed
within (A) six months after the Effective Date, or such
later date as the Bankruptcy Court allows, if the
amount of the Claim is $500,000 or more, or (B)
eighteen months after the Effective Date, or such later
date as the Bankruptcy Court allows, if the amount of
the Claim is under $500,000, or (ii) the Claim is
allowed (and only to the extent allowed) by a Final
Order.
No Claim shall be deemed to be an Allowed Claim for purposes of
this Plan unless and until one of the above conditions has been
satisfied.
Available Cash means, with respect to any Payment
Period, the sum of all cash receipts of the Reorganized Company
during such period from all sources, including funds released
from Working Capital Reserves established during prior Payment
Periods, less the sum of
(a) cash disbursements during such period for all
necessary and reasonable operating expenses of the
Reorganized Company, including, without limitation,
payments with respect to capitalized lease or equipment
financing transactions pursuant to Section 4.1 of this
Plan, or payments pursuant to executory contracts
- 3 -
assumed pursuant to Article VI of this Plan, plus
Working Capital Reserves established during such
period;
(b) all payments made during such period with
respect to any indebtedness of the Reorganized Company,
including without limitation the Term Loan, the New
Revolving Credit Facility, the New Senior Notes, and
the New Cash Flow Notes;
(c) payments during such period for capital
expenditures;
(d) payments when due of income, property and
other taxes of the Reorganized Company;
(e) refunds due in respect of the termination of
Homesite Purchase Contracts that were amended pursuant
to the Homesite Program;
(f) payments of Allowed Administrative Claims;
(g) payments in respect of Secured Property Tax
Claims pursuant to Section 5.2.3 of this Plan;
(h) payments of other tax Claims pursuant to
Section 3.3 of this Plan;
(i) payments in respect of Allowed Priority
Claims pursuant to Section 5.3 of this Plan;
(j) payment of the expenses of Estate
Administration pursuant to Section 8.9 of this Plan;
and
- 4 -
(k) funds maintained for development expenditures
pursuant to Section 7.6 or utility obligations pursuant
to Section 7.7 of this Plan.
Bankers Trust means Bankers Trust Company, as indenture
trustee under the Junior Subordinated Debenture Indenture.
Bankruptcy Code means Title 11 of the United States
Code, 11 U.S.C. §§ 101 et sect.
Bankruptcy Court means the United States Bankruptcy
Court for the Southern District of Florida or, in the event that
such court ceases to exercise jurisdiction over this
reorganization case, the court that exercises jurisdiction over
such case in lieu of the United States Bankruptcy Court for the
Southern District of Florida.
Bankruptcy Rules means the Rules of Bankruptcy
Procedure.
Claim means any right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured; or any right to an equitable
remedy for breach of performance, if such breach gives rise to a
right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured, or unsecured.
Collection and Servicing Agreement means any agreement
entered into between the Debtor and any CR Lender and approved by
- 5 -
the Bankruptcy Court relating to the transfer of collection and
servicing of Contract Receivables by the Debtor to a CR Lender.
Commercial Notes and Mortgages means promissory notes
and purchase money mortgages arising from the sale of parcels of
commercial real property.
Common Stock means any share of the Company's common
stock, $1.00 par value, and any rights (including the Company's
Rights to Purchase Series B Participating Cumulative Preferred
Stock), warrants (including warrants issued pursuant to the
Prudential Agreement) or options existing with respect thereto.
Company means General Development Corporation with
respect to periods prior to the Petition Date, -Debtor with
respect to the period after the Petition Date and before the
Effective Date, or the Reorganized Company with respect to
periods after the Effective Date.
Confirmation Date means the date of entry of the
Confirmation Order.
Confirmation Order means the order of the Bankruptcy
Court confirming this Plan, which order shall have the effect of
approving and incorporating into the Plan all of the Exhibits and
Schedules to the Plan.
Contract Receivables means any right to payment of
principal and interest on a Homesite Purchaser Contract.
Creditors' Committee means the Official Unsecured
Creditors' Committee appointed by the United States Trustee
- 6 -
0
pursuant to Section 1102(a) of the Bankruptcy Code, in accordance
with an order of the Bankruptcy Court entered on August 31, 1990.
CR Lender means any of First National Bank of Boston;
Daiwa Bank Limited; Greyhound Real Estate Finance Corporation;
Harbor Federal Savings and Loan; Merrill Lynch Interfunding,
Inc.; National Bank of Canada; The Oxford Finance Companies,
Inc.; and StanChart Business Credit, Inc.
CR Lender Claim means any Claim arising from the sale
or financing of Contract Receivables by the Debtor.
CR Lenders Agreement means the Agreement dated October
17, 1990, by and among the Debtor, General Development Financial
Services, Inc., and each of the CR Lenders.
Debtor means General Development Corporation, as debtor
and debtor-in-possession in this reorganization case.
Debtor Subsidiaries means Environmental Quality
Laboratory, Inc.; Five Star Homes, Inc.; Five Star Homes Group,
Inc.; Florida Residential Communities, Inc.; GDV Financial
Corporation; General Development Financial Services, Inc.; and
General Development Resorts, Inc., all of which filed petitions
for relief under Chapter 11 of the Bankruptcy Code and whose
cases have been administratively consolidated with that of the
Debtor.
DIP Financing shall mean the debtor-in-possession
financing authorized pursuant to the Bankruptcy Court's Third
Order Amending Order Authorizing Debtor to Borrow Monies and
- 7 -
•
Grant Security Interests and Administrative Priority under it
U.S.C. § 364 and Approving Compromise, entered January 29, 19911
as such order may be amended, modified or extended from time to
time by a subsequent order.
Disbursement Account means the account created in
accordance with Section 8.4 of this Plan.
Disbursing Agent means the person or entity appointed
by the Bankruptcy Court in accordance with the provisions of
Section 8.3.1 of this Plan.
Disclosure Statement means the Disclosure Statement to
be filed with the Court pursuant to Section 1125 of the
Bankruptcy Code, which has been approved by the Bankruptcy Court.
for distribution pursuant to Section 1125 of the Bankruptcy Code.
Disputed Claim means a Claim -against the Debtor, other
than Claims described in clauses (1) or (2) of the definition of
"Allowed Claim," as to which:
(a) a proof of the Claim has been (i) timely filed,
(ii) deemed filed pursuant to Section illi(a) of the Bankruptcy
Code, or (iii) late filed with leave of the Bankruptcy Court
after notice and opportunity for a hearing given to the Debtor,
the Creditors' Committee and to all parties entitled to receive
notice thereof; and
(b) an objection to such Claim is filed within (A) six
months after the Effective Date, or such later date as the
Bankruptcy Court allows, if the amount of the Claim is $500,000
r
or more, or (B) eighteen months after the Effective Date, or such
later date as the Bankruptcy Court allows, if the amount of the
Claim is under $500,000, and such claim has not yet been
determined by a Final Order.
Distribution Ratio means, for any holder of an Allowed
Claim in any Unsecured Claim Class other than Class 4, the ratio
of (1) the Interim Calculation Amount for the New Senior Notes to
(2) $100,000,000 minus the Interim Class 4 Calculation Amount for
the New Senior Notes.
Effective Date means a date jointly designated in
writing by the Debtor and the Creditors, Committee that occurs
after the first business day following the date on which all
conditions to effectiveness of the Plan set forth in Article IX
have been satisfied or, to the extent so provided, waived;
provided that, the Effective Date shall in no event occur more
than 120 days after the Confirmation Date.
Estate Administration means the conduct of the powers
and duties provided by Section 8.9 under the direction and
control of the Creditors' Committee.
Final Judgment means the Final Judgment of Permanent
Injunction and Other Relief entered on November 29, 1990 by the
United States District Court for the Southern District of Florida
in the case of United States v. General Development Corporation,
Case No. 90-879-Civ-NESBITT.
=W*=
0
Final Order means an order or judgment of a court as to
which (i) the time to appeal or to seek certiorari or review has
expired and as to which no appeal or petition for certiorari or
review has been timely filed, or (ii) any timely -filed appeal or
petition for certiorari or review has been finally determined or
dismissed.
Government Development Claim means any Claim of the
State of Florida or any agency thereof or inunicipality or other
public entity or instrumentality arising from development
obligations of the Company, including Claims based on corporate
performance bonds issued by the Company.
Greyhound Florida Trust means that certain Trust
Agreement No. 6080352, dated December 29, 1989, by and between
NCNB National Bank of Florida, N.A., as Trustee, and the Company,
as Beneficiary.
Greyhound Tennessee Trust means that certain Trust
Agreement No. 1, dated December 29, 1989, by and between Joe M.
Looney, Esq., as Trustee, and the Company, as Beneficiary.
Homesite means an individual, subdivided parcel of real
property which the Company agreed to sell pursuant to a Homesite
Purchase Contract and intended for residential construction.
Homesite Program means the Debtor's Homesite Purchaser
Assurance Program, as approved by the Bankruptcy Court by its
Order Granting Motion to Authorize and Implement Homesite
Purchaser Assurance Program entered October 26, 1990.
- 10 -
0
Homesite Purchase Contract means an installment land
sales contract for the sale of a Homesite by the Company to a
Homesite Purchaser.
Homesite Purchaser means any purchaser of a Homesite
under a Homesite Purchase Contract.
Improvement Obligations Agreement means the Improvement
Obligations Agreement between the Debtor and the Division of
Florida Land Sales, Condominiums and Mobile Homes, Department of
Business Regulations, State of Florida, which was fully executed
on or about August 20, 1990.
Initial Allocations shall have the meaning set forth in
Section 5.4.2.
Initial Allocation Ratio means, as to the holder of any
Allowed Claim in any Unsecured Claim Class, the ratio of such
holder's Allowed Claim to Total Unsecured Claims.
Interim Calculation Amount means, as to the holder of
any Allowed Claim in any Unsecured Claim Class, the principal
amount of New Senior Notes, the principal amount of New Cash Flow
Notes, or the number of shares of New Common Stock determined by
application of the principles set forth in Section 5.4 and 5.6 of
this Plan.
Interim Class 4 Calculation Amount means, for any of
the New Senior Notes, the New Cash Flow Notes, or the New Common
Stock, the aggregate Interim Calculation Amounts determined for
all the holders of Allowed Claims in Class 4.
•
Issuance Date means the tenth (10th) day after the
Effective Date, or, if such day is not a business day, the first
business day thereafter.
Junior Subordinated Debenture Claim means any Claim
evidenced by or arising from the Junior Subordinated Debentures,
except for any Claim of the indenture trustee pursuant to Section
605 of the Junior Subordinated Debenture Indenture, which shall
be included in Class 12.
Junior Subordinated Debenture Indenture means that
certain Indenture from the Company to Bankers Trust, dated as of
September 1, 1985.
Junior Subordinated Debentures means.the Company's
12 5/8% Subordinated Debentures due September 1, 2005 in the
original aggregate principal amount of,$175,000,000, issued
pursuant to and governed by the Junior Subordinated Debenture
Indenture.
Land Trust Agreements means (1) the three (3) trust
agreements, all dated as of January 17, 1991, entered into
pursuant to the Order of the Bankruptcy Court dated January 8,
1991, including: Trust Agreement No. 06-01-009-6081954 between
the Debtor, as Beneficiary, and NCNB National Bank of Florida,
N.A., as Trustee; Trust Agreement No. 06-01-009-6082101 between
the Debtor, as Beneficiary, and NCNB National Bank of Florida,
N.A., as Trustee; and Trust Agreement No. 06-01-009-6082655
between the Debtor and General Development Financial Services,
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Inc., collectively, as Beneficiary, and NCNB National Bank of
Florida, N.A., as Trustee; and (2) any Trust Agreement between
the Debtor and Cumberland Cove, Inc., collectively, as
Beneficiary, and Joe M. Looney, as Trustee, as approved by the
Bankruptcy Court.
Letter of Credit Claim means any Claim against Debtor
arising from reimbursement obligations with respect to any letter
of credit issued for the account of the Company or for which the
Company is liable, whether or not draws have been made or funded
under the letter of credit to which such Claim relates.
Manufacturers Hanover Reference Rate means the rate of
interest publicly announced by Manufacturers Hanover Trust
Company ("MHT") as its reference rate, as such rate may be
adjusted from time to time. The reference rate is not intended
to be the lowest rate of interest charged by MHT in connection
with the extension of credit to debtors.
New Cash Flow Notes means the New Secured Cash Flow
Notes and the New Unsecured Cash Flow Notes.
New Common Stock means shares of common stock, par
value $.10 per share, to be issued by the Reorganized Company to
holders of Allowed Claims in the Unsecured Claim Classes pursuant
to this Plan.
New Note Distribution Amount means, for either the New
Senior Notes or the New Cash Flow Notes, $85,000,000 minus the
Interim Class 4 Calculation Amount.
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C
New Revolving Credit Facility means the revolving
credit facility to be obtained by the Reorganized Company
pursuant to Section 8.1 of this Plan.
New Secured Cash Flow Notes means the Reorganized
Company's Secured Adjustable Rate Cash Flow Notes Due December
15, 1998, to be issued to the holders of Allowed Claims in Class
4 pursuant to this Plan.
New Secured Senior Notes means the Reorganized
Company's Secured Adjustable Rate Senior Notes Due December 15,
1996, to be issued to the holders of Allowed Claims in Class 4
under this Plan.
New Senior Notes means the New Secured Senior Notes and
the New Unsecured Senior Notes.
New Stock Supplemental Distribution Amount means, for
any holder of an Allowed Claim in any Unsecured Claim Class other
than Class 4, the number of shares of New Common Stock determined
by multiplying (1) a number of shares to be determined before the
Confirmation Date to have a projected value, solely for purposes
of distributions under this Plan, of $30,000,000 by (2) the
Distribution Ratio.
New Unsecured Cash Flow Notes means the Reorganized
Company's Unsecured 13% Cash Flow Notes Due December 15, 1998, in
the form of Exhibit A-2 hereto, to be issued by the Reorganized
Company to holders of Allowed Claims in the Unsecured Claim
Classes other than Class 4 pursuant to this Plan.
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New Unsecured Senior Notes means the Reorganized
Company's Unsecured 12% Senior Notes Due December 15, 1996, in
the form of Exhibit A-1 hereto, to be issued by the Reorganized
Company to holders of Allowed Claims in the Unsecured Claim
Classes other than Class 4 pursuant to this Plan.
Oxford Trusts mean: Trust Agreement No. 45286002,
dated August 30, 1989, by and between Southeast Bank, N.A., as
Trustee, and the Company, as Beneficiary, as modified by the
Assignment of Trust Agreement dated December 29, 1989, by and
between Southeast Bank, N.A. and NCNB National Bank of Florida,
N.A., and any Modification of Trust Agreement by and between NCNB
National Bank of Florida, N.A., as Trustee, and the Debtor, as
Beneficiary, consented and agreed to by The Oxford Finance
Companies, Inc. that is approved by the Bankruptcy Court; and
Trust Agreement No. 06-01-009-6080188, dated October 16, 1989, by
and between NCNB National Bank of Florida, N.A., as Trustee, and
the Company, as Beneficiary, as modified by any Modification of
Trust Agreement by and between NCNB National Bank of Florida,
N.A., as Trustee, and the Debtor, as Beneficiary, consented and
agreed to by The Oxford Finance Companies, Inc. that is approved
by the Bankruptcy Court.
Payment Date means each August 1 and February 1
following the last day of a Payment Period, or if such day is not
a business day, the first business day thereafter.
•
•
Payment Period means (1) the period commencing on the
Effective Date and ending on either the next June 30 or the next
December 31, whichever is at least four months after the
Effective Date; and (2) each six-month period thereafter ending
June 30 or December 31.
Petition Date means April 6, 1990.
Plan means this Joint Plan of Reorganization of General
Development Corporation, together with any modifications thereto
as may hereafter be filed in accordance with the requirements of
Section 1127 of the Bankruptcy Code, and shall also constitute
the Plan of Reorganization within the meaning of Section
368(a)(1) of the Internal Revenue Code.
Preferred Stock means the Company's 11.10% Convertible
Exchangeable Preferred Stock.
Priority Claim means an Unsecured Claim for wages,
salaries, or commissions, employee benefit plan contributions,
consumer deposits, or taxes that is entitled to priority under
sections 507(a)(3), (4), (6) or (7) of the Bankruptcy Code.
Prudential Agreement means that certain Note and Stock
Purchase Agreement of the Company with The Prudential Insurance
Company of America dated as of January 31, 1988.
Prudential Senior Subordinated Note Claim means any
Claim evidenced by or arising from the Prudential Senior
Subordinated Notes.
- 16 -
•
Prudential Senior Subordinated Notes means the
Company's 12.75% Senior Subordinated Notes due January 31, 2000,
in the original aggregate principal amount of $75,000,000, issued
pursuant to and governed by the Prudential Agreement.
Public Senior Subordinated Note Indenture means that
certain Indenture from the Company to Manufacturers Hanover Trust
Company as indenture trustee, dated as of April 1, 1988, as to
which U.S. Trust was appointed successor trustee on March 20,
1990.
Public Senior Subordinated Note Claim means any Claim
evidenced by or arising from the Public Senior Subordinated
Notes, except for any Claim of the indenture trustee pursuant to
Section 607 of the Public Senior Subordinated Notes Indenture,
which shall be included in Class 12.
Public Senior Subordinated Notes means the Company's
12 7/8% Senior Subordinated Notes due 1995 in the original
aggregate principal amount of $125,000,000, issued pursuant to
and governed by the Public Senior Subordinated Note Indenture.
Reorganized Company means, upon the Effective Date, the
Company as reorganized pursuant to this Plan.
Restitution Program means the program established by
the Final Judgment to resolve claims for overpayments by eligible
purchasers of houses from the Company.
Revolving Credit Claim means any Claim arising from
loans to the Company pursuant to the Credit Agreement dated as of
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0
July 15, 1988 among the Company, the Banks party thereto, and
Manufacturers Hanover Trust Company, as agent and escrow agent,
as amended.
Secured Claim means a Claim against the Debtor that
arose before the Petition Date, to the extent of the value of any
lien on or security interest in property of the Company which
secures payment of such Claim.
Shareholder Interests means the equity interests
represented by the Common Stock and the Preferred Stock.
Special Master means the Special Master appointed to
administer the Restitution Program pursuant to the Final
Judgment.
Term Loan shall mean the term loan into which the DIP
Financing is to be converted pursuant to Section 3.1.
Total Unsecured Claims means the sum of (i) all Allowed
Claims in all of the Unsecured Claim Classes, including all
Claims in such classes, the amounts of which have been estimated
by a Final Order for the purpose of allowance pursuant to Section
502(c) of the Bankruptcy Code, (ii) the amounts of all Disputed
Claims which any party in interest (including the Creditors'
Committee or the Company) contends are, or should be, classified
as Claims in any Unsecured Claim Class, if allowed, and (iii) the
amounts of all Claims which have not yet become Allowed or
Disputed Claims which any party in interest (including the
Creditors' Committee or the Company) contends are, or should be,
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classified as Claims in any Unsecured Claim Class, if allowed.
For purposes of determining the Total Unsecured Claims, the
amount of any Claim described above that is filed in an
undetermined amount (other than those that have been estimated by
a Final Order for the purpose of allowance pursuant to Section
502(c) of the Bankruptcy Code), shall be estimated under Section
502(c) of the Bankruptcy Code, pursuant to Section 8.9(a) hereof,
within six months after the Effective Date, and Claims for
unliquidated interest and attorneys fees shall be disregarded
except as otherwise determined by the Bankruptcy Court. In
connection with the initial distributions under this Plan
pursuant to Section 8.5, the Debtor and the Creditors' Committee
may, prior to the Issuance Date, move the Bankruptcy Court
pursuant to Section 502(c) of the Bankruptcy Code to estimate
Total Unsecured Claims.
Unsecured Claim means a Claim against the Debtor that
arose or is deemed to have arisen before the Petition Date, to
the extent the amount of such Claim (a) is not secured by any
property rights in the property of the Company, or (b) is greater
than the value of any property rights in property of the Company
which secures such Claim.
Unsecured Claim Class means any of Classes 4, 5, 6, 7,
8, 9, 10, 11, or 12, as such classes are defined in Article II.
- 19 -
U
U.S. Trust means United States Trust Company of New
York, as successor indenture trustee under the Public Senior
Subordinated Note Indenture.
Working Capital Reserves means reserves established by
the Board of Directors of the Reorganized Company, maintained for
operating and capital expenses, including reserves for
anticipated payments required to be made during the next two
succeeding Payment Periods under the Term Loan, the New Revolving
Credit Facility, the New Senior Notes, or for taxes or any other
payment required under this Plan.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
All Claims and Interests, other than Administrative
Claims and tax Claims, which are described in Article III below,
are divided into the following classes, which shall be mutually
exclusive.
2.1 Class 1 -- Secured CR Lender Claims.
2.1.1 Class 1.1 -- Bank of Boston Secured Claim.
Class 1.1 consists of any Claim by the First National Bank of
Boston ("Bank of Boston") arising from a Purchase and Sale
Agreement between the Company and Bank of Boston dated as of
February 27, 1988, as amended, to the extent that such Claim is a
Secured Claim secured by a security interest in Contract
Receivables.
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2.1.2 Class 1.2 -- Daiwa Secured Claim. Class
1.2 consists of any Claim of Daiwa Bank Limited (successor to
Lloyd's Bank PLC) ("Daiwa") arising from a Purchase and Sale
Agreement between the Company and Lloyd's Bank PLC dated as of
January 31, 1989, as amended, to the extent that such Claim is a
Secured Claim secured by a security interest in Contract
Receivables.
2.1.3 Class 1.3 -- Greyhound Secured Claims.
Class 1.3 consists of any Claims of Greyhound Real Estate Finance
Corporation ("Greyhound") arising from (a) a Purchase and Sale
Agreement between the Company and Greyhound dated as of December
30, 1987 ("Greyhound I Claim"), to the extent that such Claims
are Secured Claims secured by security interests in Contract
Receivables; (b) from a Purchase and Sale Agreement between the
Company and Greyhound dated as of December 29, 1989 ("Greyhound
II Claim"), to the extent that such Claims are Secured Claims
secured by security interests in Contract Receivables and the
Debtor's beneficial interest in the Greyhound Florida Trust and
the Greyhound Tennessee Trust; and (c) from a Purchase Agreement
dated as of December 30, 1987 ("Greyhound Commercial Claim"), to
the extent that such claims are Secured Claims secured by
security interests in Commercial Notes and Mortgages.
2.1.4 Class 1.4 -- Harbor Federal Secured Claim.
Class 1.4 consists of any Claim of Harbor Federal Savings and
Loan Association ("Harbor Federal") arising from a Purchase and
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Sale Agreement between the Company and Harbor Federal dated as of
June 27, 1986, to the extent such Claim is a Secured Claim
secured by a security interest in Contract Receivables.
2.1.5 Class 1.5 -- Merrill Lynch Secured Claims.
Class 1.5 consists of any Claims of Merrill Lynch Interfunding,
Inc. arising from a Purchase and Sale Agreement between the
Company and Merrill Lynch dated as of March 16, 1987, as amended
(the "Merrill Lynch I Claim"), and a Purchase and Sale Agreement
dated as of September 28, 1987, as amended (the "Merrill Lynch II
Claim"), to the extent that such Claims are Secured Claims
secured by a security interest in Contract Receivables.
2.1.6 Class 1.6 -- NBC Secured Claim. Class 1.6 -
consists of any Claim of National Bank of Canada ("NBC") arising
from a Purchase and Sale Agreement between the Company and
Citicorp Real Estate, Inc. dated as of June 30, 1988, (which
Citicorp Real Estate, Inc. assigned to NBC), as amended, to the
extent that such Claim is a Secured Claim secured by a security
interest in Contract Receivables.
2.1.7 Class 1.7 -- Oxford Secured Claim. Class
1.7 consists of any Claim of The Oxford Finance Companies, Inc.
("Oxford") arising from Purchase and Sale Agreements between the
Company and Oxford dated as of August 30, 1989, and October 18,
1989, as amended, to the extent that such Claim is a Secured
Claim secured by a security interest in Contract Receivables and
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•
0
the Debtor's beneficial interest in certain Homesites underlying
Contract Receivables.
2.2 Class 2 -- Other Secured Claims.
2.2.1 Class 2.1 -- Mechanic's and Site Liens.
Class 2.1 consists of Secured Claims secured by valid, perfected
and enforceable mechanic's or site liens on property of the
Company, but only to the extent of the value of the property
securing the Claim and only to the extent that they have not been
satisfied previously. Any unsecured portion of the Claim
asserted by a Class 2.1 creditor is classified as an Unsecured
Claim in Class 12. Each Secured Claim secured by a mechanic's or
site lien shall be treated as a separate class -for purposes of -
this Plan.
2.2.2 Class 2.2 -- Section 365(j) Claims. Class
2.2 consists of the Claims of Homesite Purchasers whose Homesite
Purchase Contracts have been rejected by the Debtor, to the
extent that such rejection claims are determined to be secured by
a lien on the Debtor's interest in the Homesite subject to the
Homesite Purchase Contract pursuant to Section 365(j) of the
Bankruptcy Code. Unless otherwise determined by the Bankruptcy
Court, any unsecured portion of the Claim asserted by a Class 2.2
creditor is classified as an Unsecured Claim in Class 10.
2.2.3 Class 2.3 -- Secured Property Tax Claims.
Class 2.3 consists of all Claims for property or ad valorem
taxes, regardless of whether such property is real, personal, or
- 23 -
0
mixed, that are secured by liens on property of the Company that
became a lien prior to the Petition Date, including, without
limitation, all taxes as to which a lien arose prior to the
Petition Date pursuant to Section 192.053 or Section 197.122 of
the Florida Statutes, but excluding Claims arising under Section
507(a)(7) of the Bankruptcy Code, which are treated under Section
3.3 of this Plan.
2.2.4 Class 2.4 -- Capitalized Lease1Equi2ment
Financing Claims. Class 2.4 consists of Claims based on
capitalized leases or other equipment financing transactions
entered into by the Company, to the extent such transactions are
determined to be secured financings, and to the extent of the
value of the property securing the Claim. Each Secured Claim
based on a capitalized lease or equipment financing transaction
shall be treated as a separate class for purposes of this Plan.
2.2.5 Class 2.5 -- Other Secured Claims. Class
2.5 shall consist of any other Secured Claims, including without
limitation, those disclosed by review of the proofs of claim
filed in this case. Each Secured Claim secured by different
property of the Company shall be treated as a_separate class for
purposes of this Plan, as set forth in Exhibit C to this Plan.
2.3 Class 3 -- Priority Claims. Class 3 includes all
Priority Claims other than tax Claims entitled to priority under
Section 507(a)(7) of the Bankruptcy Code, and consists of the
following subclasses:
- 24 -
2.3.1 Class 3.1 -- Wages, Salaries or
Commissions. Class 3.1 shall consist of Claims entitled to
priority under Section 507(a)(3) of the Bankruptcy Code; provided
that the amount of any holder's otherwise allowable Class 3.1
Claim shall be reduced by the aggregate amount received by such
holder pursuant to the wage order signed by the Bankruptcy Court
on April 8, 1990.
2.3.2 Class 3.2 -- Employee Benefit Plan
Contributions. Class 3.2 shall consist of Claims entitled to
priority under Section 507(a)(4) of the Bankruptcy Code.
2.3.3 Class 3.3 -- Consumer Deposits. Class 3.3
shall consist of Claims entitled to priority under Section
507(a)(6) of the Bankruptcy Code.
2.4 Class 4 -- Revolving Credit Claims. Class 4
consists of all Revolving Credit Claims.
2.5 Class 5 -- Letter of Credit Claims. Class 5
consists of all Letter of Credit Claims.
2.6 Class 6 -- Unsecured CR Lender Claims. Class 6
consists of all Unsecured CR Lender Claims.
2.7 Class 7 -- Prudential Senior Subordinated Note
Claims. Class 7 consists of all Prudential Senior Subordinated
Note Claims.
2.8 Class 8 -- Public Senior Subordinated Note
Claims. Class 8 consists of all Public Senior Subordinated Note
Claims.
- 25
2.9 Class 9 -- Junior Subordinated Debenture Claims.
Class 9 consists of all Junior Subordinated Debenture Claims.
2.10 Class 10 -- Home and Homesite Purchaser Claims.
Class 10 consists of all Claims of purchasers of homes from the
Company, including participants in the Restitution Program, and
all Unsecured Claims of Homesite Purchasers, except for Claims
included in Class 14.
2.11 Class 11 -- Government Development Claims. Class
11 consists of all Government Development Claims.
2.12 Class 12 -- General Unsecured Claims. Class 12
consists of all Unsecured Claims, other than the Administrative
and tax Claims discussed in Article III, that are not otherwise
classified under this Article II, including trade Claims;
provided, however, that each holder of•a Claim that would
otherwise be included in Class 12 may elect to have his or her
claim reduced to the amount to be specified in Section 2.13 and
and included in Class 13.
2.13 Class 13 -- Convenience Class. Class 13 consists
of all Unsecured Claims against the Debtors (other than
Administrative or Priority Claims), that are less than or equal
to an amount to be determined by the Debtor and the Creditors'
Committee after review of the claims register.
2.14 Class 14 -- Utility Claims. Class 14 consists of
Claims of Homesite Purchasers (whether or not such purchasers
have filed a proof of claim) who have received a deed to a
- 26 -
Homesite prior to the Petition Date and whose Claims include a
claim based on an obligation of the Company to provide utility
service (water and/or sewer) to the Homesite. All Claims of
Homesite Purchasers described in the preceding sentence will be
treated as a Class 14 Claim unless, prior to the Confirmation
Date, the holder of the Claim has filed a notice with the
Bankruptcy Court electing to have its Claim treated as a Class 10
Claim. If a Homesite Purchaser elects to have its Claim treated
as a Class 10 Claim, it shall have no right to participate in the
treatment accorded holders of Claims in Class 14.
2.15 Class 15 -- Retiree Claims. Class 15 consists of
all Claims asserted with respect to "retiree benefits" as defined
in Section 1114 of the Bankruptcy Code.
2.16 Class 16 -- Non -compensatory Claims. Class 16
consists of all Claims, whether Secured or Unsecured, for any
fine, penalty or forfeiture, or for multiple, exemplary or
punitive damages, to the extent that such fine, penalty or
forfeiture, or damages, are not compensation for actual pecuniary
loss suffered by the holder of such Claim.
2.17 Class 17 -- Securities Violation Claims. Class 17
consists of all Claims arising from rescission of a purchase or
sale of a security of the Company or of an Affiliate of the
Company, for damages arising from the purchase or sale of such a
security, or for reimbursement, contribution or indemnification,
- 27 -
•
on account of such a Claim, including expenses incurred in
defending such a Claim.
2.18 Class 18 -- Shareholder Interests.
2.18.1 Preferred Stock. Class 18.1 consists of
all Shareholder Interests asserted with respect to the Preferred
Stock.
2.18.2 Common Stock. Class 18.2 consists of all
Shareholder Interests asserted with respect to the Common Stock.
ARTICLE III
TREATMENT OF ADMINISTRATIVE AND TAX CLAIMS
3.1 DIP Financing. The DIP Financing shall, as of the
Effective Date, be converted into a Term Loan in the amount of
the outstanding balance of the DIP Financing, not to exceed
$75,000,000 at an interest rate equal to the Manufacturers
Hanover Reference Rate plus two percent (2%) per annum. In the
event the outstanding principal balance of the DIP Financing is
$25,000,000 or less at the Confirmation Date, such interest rate
shall be the Manufacturers Hanover Reference Rate plus one and
one-half percent (1 1/2%) per annum. Interest shall be payable
quarterly in arrears. Principal shall be repaid in installments
of $25,000,000 on each of December 15, 1992 and 1993, and the
balance shall be due and payable on December 15, 1994. Principal
shall be prepaid from Available Cash remaining after payment of
accrued interest on the New Cash Flow Notes, which payments shall
be applied to scheduled installments in order of maturity. The
- 28 -
Term Loan may be prepaid at any time. The Term Loan will be
secured by first liens on all assets of the Reorganized Company
except for the property to which liens are transferred pursuant
to Section 5.2.2 of this Plan, the property securing the New
Secured Cash Flow Notes, and any other liens granted or continued
pursuant to this Plan. The Term Loan shall be governed by a Loan
Agreement and other documentation satisfactory to the Debtor, the
Creditors' Committee and the Term Loan lenders.
3.2 Administrative Claims.
3.2.1 Non -ordinary Course.
(a) Any person or entity that asserts an
Administrative Claim that arises before the Effective Date,
including Claims under Section 503(b)(2)-(5) of the Bankruptcy
Code, but not Claims described in Section 3.2.2, shall, on or
before such date as the Bankruptcy Court may establish in the
Confirmation Order or otherwise, file an application with the
Bankruptcy Court for allowance of such Claim as an Administrative
Claim specifying the amount of and basis for such Claim; provided
that applicants who filed an application with the Bankruptcy
Court before the Confirmation Date need not file a new
application. Failure to file a timely application for allowance
pursuant to this Section shall bar a claimant from seeking
recovery on such Claim.
(b) Members of the Creditors' Committee shall be
entitled to recover as Administrative Claims their actual out -of-
- 29 -
pocket expenses (but not legal or professional fees, unless
otherwise allowed by the Bankruptcy Court) incurred in the
performance of their duties as members of the Creditors'
Committee.
(c) Administrative Claims allowed under this
Section of this Plan shall be paid, in full, in single cash
payments, within ten days following entry of a Final Order
allowing the Claim, unless the party entitled to payment thereon
agrees in writing to a different treatment of the Administrative
Claim.
3.2.2 Ordinary Course. Administrative expenses
arising from obligations of the Debtors incurred in the ordinary -
course of business shall be resolved by means of the Reorganized
Company's performance of the obligation in accordance with the
terms and conditions of the agreement or applicable law giving
rise thereto, and no proof of Claim shall be required to be
filed.
3.3 Tax Claims. Except to the extent that the holder
has agreed or may agree to a different treatment, each holder of
an Allowed Claim arising under Section 507(a)(7) of the
Bankruptcy Code (which Claims do not include Claims in Class 2.3)
shall receive from the Reorganized Company, in full satisfaction
of such Claim, cash equal to the amount of such Claim, plus
simple interest at such rate of interest as may be required by
Section 1129(a)(9)(C) of the Bankruptcy Code, which rate of
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•
interest shall be fixed in the Confirmation Order, accruing from
the Petition Date, payable in equal semi-annual installments
beginning on the first Payment Date after the date the Order
allowing such Claim became a Final Order and ending on the last
Payment Date that occurs before the sixth anniversary of the date
of assessment of such tax.
ARTICLE IV
TREATMENT OF UNIMPAIRED CLASSES
The following classes are unimpaired and shall be
treated as set forth below. In the event a controversy arises as
to whether any class of Claims is impaired under the Plan, the
Bankruptcy Court shall, after notice and an opportunity for a
hearing, determine such controversy.
4.1 Class 2.4 -- Capitalized Leases/Equipment
Financing Claims. Unless otherwise treated in a Final Order of
the Bankruptcy Court entered prior to the Confirmation Date, each
holder of an Allowed Claim in Class 2.4 shall retain its legal,
equitable and contractual rights with respect to the property in
which such holder has a valid and perfected security interest,
and the Reorganized Company shall cure all defaults with respect
to such transactions and assume the Company's obligations under
such transaction as soon as practicable after the Effective Date.
4.2 Class 2.5 -- Other Secured Claims. The holders of
Allowed Claims in Class 2.5 shall be treated in one of the
following ways: (1) retention of the legal, equitable and
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contractual rights against the property in which such holder has
a valid and perfected security interest to the extent of each
such Allowed Claim as determined pursuant to Section 506 of the
Bankruptcy Code; (ii) sale or disposition of the property
securing any Allowed Claim, subject to the lien or free and clear
of the lien and payment of the net proceeds thereof to the holder
or holders of such Allowed Claims; (iii) cure, as soon as
practicable after the Effective Date, of all defaults with
respect to such Allowed Claim and assumption of the obligation by
the Reorganized Company, and payment in accordance with the terms
of the underlying instruments; or (iv) tender to the holder or
holders of such Allowed Claim of the property securing such Claim
or the right to foreclose on said property. The manner of
treatment of such Claim shall be determined by the Debtor and the
Creditors' Committee on or before the Effective Date, upon
written notice to the holder of each such Claim; provided that,
in the event that no such notice is given, the Claim shall be
treated as described in clause (ii) above.
4.3 Class 15 -- Retiree Claims. The Reorganized
Company will timely pay all "retiree benefits," as defined in
Section 1114 of the Bankruptcy Code.
ARTICLE V
TREATMENT OF IMPAIRED CLASSES
The following classes are impaired under the Plan. In
the event a controversy arises as to whether any class of Claims
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is impaired under the Plan, the Bankruptcy Court shall, after
notice and an opportunity for a hearing, resolve such
controversy. All impaired classes shall receive the
distributions set forth in this Article on account of and in
complete satisfaction of all Claims against the Debtor, and shall
have no rights or remedies against the Debtor, the Reorganized
Company or any of its assets or properties, except as
specifically set forth in this Plan.
5.1 Class 1 -- Secured Claims of CR Lenders.
5.1.1 Classes 1.1_, 1.2, 1.4 and 1.6 -- Bank of
Boston. Daiwa. Harbor Federal and NBC Secured Claims. Each of
Bank of Boston, Daiwa, Harbor Federal and NBC shall retain its
security interests in Contract Receivables and, notwithstanding
the fact that its total Allowed Claim may be divided into a
Secured Claim and an Unsecured Claim for purposes of this Plan,
shall be entitled (subject to the provisions of the CR Lenders
Agreement and any Supplemental Agreements between the Debtor and
Bank of Boston, Daiwa, Harbor Federal or NBC that are approved by
the Bankruptcy Court) to receive and retain all of the proceeds
of all such Contract Receivables, up to the amount of its total
Allowed Claim plus any amounts allowed by Final Order under
Section 506(b) of the Bankruptcy Code. In the event that any of
Bank of Boston, Daiwa, Harbor Federal or NBC receives its total
Allowed Claim plus any amounts allowed by Final Order under
Section 506(b) of the Bankruptcy Code, all security interests in
- 33 -
the remaining Contract Receivables granted to such CR Lender, if
any, shall terminate and be released, and, to the extent
necessary, title to such Contract Receivables shall revert to the
Reorganized Company. Each of Bank of Boston, Daiwa, Harbor
Federal and NBC may service the Homesite Purchase Contracts to
which the Contract Receivables in which it has an interest relate
pursuant to the terms of the Collection and Servicing Agreement.
All other duties and obligations of the Company to Bank of
Boston, Daiwa, Harbor Federal and NBC, including without
limitation, any obligations to repurchase or replace delinquent
Contract Receivables, shall be extinguished as of the Effective
Date.
5.1.2 Class 1.3 -- Greyhound Secured Claims.
(a) Greyhound I Secured•Claim. With respect to
its Greyhound I Claim, Greyhound shall retain its security
interests in the Greyhound I Contract Receivables.
Notwithstanding the fact that its total Allowed Greyhound I Claim
may be divided into a Secured Claim and an Unsecured Claim for
purposes of this Plan, Greyhound shall be entitled (subject to
the provisions of the CR Lenders Agreement and any Supplemental
Agreement between the Debtor and Greyhound that is approved by
the Bankruptcy Court) to receive and retain all of the proceeds
of all such Greyhound I Contract Receivables, up to the amount of
its total Allowed Greyhound I Claim plus any amounts allowed by
Final Order under Section 506(b) of the Bankruptcy Code in
- 34 -
respect of such claim. In the event that Greyhound receives its
total Allowed Greyhound I Claim plus any amounts allowed by Final
Order under Section 506(b) of the Bankruptcy Code in respect of
such claim, all security interests in the remaining Greyhound I
Contract Receivables shall terminate and be released, and, to the
extent necessary, title to such Greyhound I Contract Receivables
shall revert to the Debtor or the Reorganized Company. Greyhound
may service the Homesite Purchase Contracts to which the
Greyhound I Contract Receivables relate pursuant to the terms of
the Collection a 3 Servicing Agreement. All other duties and
obligations of the Company to Greyhound in respect of the
Greyhound I transaction, including without limitation, any
obligations to repurchase or replace delinquent Contract
Receivables, shall be extinguished as of the Effective Date.
(b) Greyhound II Secured Claim. With respect to
its Greyhound II Claim, Greyhound shall retain its security
interests in the Greyhound II Contract Receivables as well as its
interests in the Debtor's beneficial interest in the Greyhound
Florida Trust and the Greyhound Tennessee Trust. Notwithstanding
the fact that its total Allowed Greyhound II Claim may be divided
into a Secured Claim and an Unsecured Claim for purposes of this
Plan, Greyhound shall be entitled (subject to the provisions of
the CR Lenders Agreement and any Supplemental Agreement between
the Debtor and Greyhound that is approved by the Bankruptcy
Court) to receive and retain all of the proceeds of all such
- 35 -
Greyhound II Contract Receivables, up to the amount of its total
Allowed Greyhound II Claim plus any amounts allowed by Final
Order under Section 506(b) of the Bankruptcy Code in respect of
such claim. Subject to the terms of any Stipulation between the
Debtor and Greyhound, as approved by the Bankruptcy Court, with
respect to relief from the automatic stay, Greyhound may enforce
its remedies with respect to the Debtor's beneficial interest in
the Greyhound Florida Trust and the Greyhound Tennessee Trust.
In the event that Greyhound receives, either from Greyhound II
Contract Receivables or from its enforcement of remedies with
respect to the Debtor's beneficial interest in the Greyhound
Florida Trust and the Greyhound Tennessee Trust, or from both
sources, its total Allowed Greyhound II Claim plus any amounts
allowed by Final Order under Section 506(b) of the Bankruptcy
Code in respect of such claim, all remaining security interests
in the Greyhound II Contract Receivables and the interest in the
Debtor's beneficial interests in the Greyhound Florida Trust and
the Greyhound Tennessee Trust, if any, shall terminate and be
released, and, to the extent necessary, title to such Greyhound
II Contract Receivables shall revert to the Debtor or the
Reorganized Company. Greyhound may service the Homesite Purchase
Contracts to which the Greyhound II Contract Receivables relate
pursuant to the terms of the Collection and Servicing Agreement.
The Reorganized Company will succeed to and have the benefit of,
and will be bound to comply with, all the rights and obligations
- 36 -
of the Company and the Debtor under the Greyhound Florida Trust
and the Greyhound Tennessee Trust. All other duties and
obligations of the Company to Greyhound in respect of the
Greyhound II transaction, including without limitation, any
obligations to repurchase or replace delinquent Contract
Receivables, shall be extinguished as of the Effective Date.
(c) Greyhound Commercial Claim. With respect to its
Greyhound Commercial Claim, Greyhound shall retain its security
interests in the Commercial Notes and Mortgages. Notwithstanding
the fact that Greyhound's total Allowed Commercial Claim may be
divided into a Secured Claim and an Unsecured Claim for purposes
of this Plan, Greyhound shall be entitled to receive and retain
all of the proceeds of all such Commercial Notes and Mortgages,
up to the amount of its Allowed Greyhound Commercial Claim plus
any amounts allowed by Final Order under Section 506(b) of the
Bankruptcy Code in respect of such Claim. In the event that
Greyhound receives its total Allowed Greyhound Commercial Claim
plus any amounts allowed by Final Order under Section 506(b) of
the Bankruptcy Code in respect of such claim, all remaining
security interests in the Commercial Notes and Mortgages, if any,
shall terminate and be released, and, to the extent necessary,
title to such Commercial Notes and Mortgages shall revert to the
Reorganized Company. Greyhound may service the Commercial Notes
and Mortgages pursuant to the Order Granting Joint Motion for
Conditional Authority to Release Segregated Cash Collateral. All
- 37 -
•
i
other duties and obligations of the Company to Greyhound,
including without limitation, any obligation to repurchase or
replace delinquent Commercial Notes and Mortgages, shall be
extinguished as of the Effective Date.
5.1.3 Class 1.5 -- Merrill Lynch Secured Claims.
(a) Merrill Lynch I Secured Claim. With respect
to its Merrill Lynch I Claim, Merrill Lynch shall retain its
security interests in the Merrill Lynch I Contract Receivables.
Notwithstanding the fact that its total Allowed Merrill Lynch I
Claim may be divided into a Secured Claim and an Unsecured Claim
for purposes of this Plan, Merrill Lynch shall be entitled
(subject to the provisions of the CR Lenders Agreement and any
Supplemental Agreement between the Debtor and Merrill Lynch that
is approved by the Bankruptcy Court) to receive and retain all of
the proceeds of all such Merrill Lynch I Contract Receivables, up
to the amount of its total allowed Merrill Lynch t Claim plus any
amounts allowed by Final Order under Section 506(b) of the
Bankruptcy Code in respect of such Claim. In the event that
Merrill Lynch receives its total Allowed Merrill Lynch I Claim
plus any amounts allowed by Final Order under Section 506(b) of
the Bankruptcy Code in respect of such Claim, all security
interests in the remaining Merrill Lynch I Contract Receivables
shall terminate and be released, and, to the extent necessary,
title to such Merrill Lynch I Contract Receivables shall revert
to the Debtor or the Reorganized Company. Merrill Lynch may
- 38 -
•
service the Homesite Purchase Contracts to which the Merrill
Lynch I Contract Receivables relate pursuant to the terms of the
Collection and Servicing Agreement. All other duties and
obligations of the Company to Merrill Lynch in respect of the
Merrill Lynch I transaction, including without limitation, any
obligations to repurchase or replace delinquent Contract
Receivables, shall be extinguished as of the Effective Date.
(b) Merrill Lynch II Secured Claim. With respect
to its Merrill Lynch II Claim, Merrill Lynch shall retain its
security interests in the Merrill Lynch II Contract Receivables.
Notwithstanding the fact that its total Allowed Merrill Lynch II
Claim may be divided into a Secured Claim and an Unsecured Claim,
forpurposes of this Plan, Merrill Lynch shall be entitled
(subject to the provisions of the CR Lenders Agreement and any
Supplemental Agreement between the Debtor and Merrill Lynch that
is approved by the Bankruptcy Court) to receive and retain all of
the proceeds of all such Merrill Lynch II Contract Receivables,
up to the amount of its total Allowed Merrill Lynch II Claim plus
any amounts allowed by Final Order under Section 506(b) of the
Bankruptcy Code in respect of such Claim. In the event that
Merrill Lynch receives its total Allowed Merrill Lynch II Claim
plus any amounts allowed by Final Order under Section 506(b) of
the Bankruptcy Code in respect of such Claim, all security
interests in the remaining Merrill Lynch II Contract Receivables
shall terminate and be released, and, to the extent necessary,
- 39 -
•
title to such Merrill Lynch II Contract Receivables shall revert
to the Debtor or the Reorganized Company. Merrill Lynch may
service the Homesite Purchase Contracts to which the Merrill
Lynch II Contract Receivables relate pursuant to the terms of the
Collection and Servicing Agreement. All other duties and
obligations of the Company to Merrill Lynch in respect of the
Merrill Lynch II transaction, including without limitation, any
obligations to repurchase or replace delinquent Contract
Receivables, shall be extinguished as of the Effective Date.
5.1.4 Class 1.7 -- Oxford Secured Claim. Oxford
shall retain its security interests in Contract Receivables and
beneficial interests in Homesites. Notwithstanding the fact that
its total Allowed Claim may be divided into a Secured Claim and
an Unsecured Claim for purposes of this Plan, Oxford shall be
entitled (subject to the provisions of the CR Lenders Agreement
and any Supplemental Agreement between the Debtor and Oxford that
is approved by the Bankruptcy Court) to receive and retain all of
the proceeds of all such Contract Receivables, and, subject to
the terms of any Stipulation Between Debtor and Oxford For
Partial Relief from the Automatic Stay that is approved by the
Bankruptcy Court, to enforce its remedies with respect to the
Debtor's beneficial interest in the Oxford Trusts securing the
Oxford Claim and retain all of the proceeds thereof, up to the
amount of Oxford's total Allowed Claim plus any amounts allowed
by Final Order under Section 506(b) of the Bankruptcy Code. In
- 40 -
the event that Oxford receives its total Allowed Claim plus any
amounts allowed by Final Order under Section 506(b) of the
Bankruptcy Code, all security interests granted to Oxford in the
remaining Contract Receivables, if any, and all remaining
interests in the Debtor's beneficial interest in the Oxford
Trusts granted to Oxford shall terminate and be released, and, to
the extent necessary, title to such Contract Receivables and the
beneficial interests in the Oxford Trusts shall revert to the
Reorganized Company. Oxford may service the Homesite Purchase
Contracts to which the Contract Receivables in which it has an
interest relate pursuant to the terms of the Collection and.
Servicing Agreement. The Reorganized Company will succeed to and
have the benefit of, and will be bound by and comply with, all
the Company's rights and obligations under the Oxford Trusts.
All other duties and obligations of the Company to Oxford,
including without limitation, any obligations to repurchase or
replace delinquent Contract Receivables, shall be extinguished as
of the Effective Date.
5.2 Class 2 -- Secured Claims.
5.2.1 Class 2.1 -- Mechanic's and Site Liens.
Allowed Secured Claims in Class 2.1 shall be paid in full from
the proceeds of the sale of the specific property to which the
lien attaches and, in the event that only a portion of the
property subject to a lien is sold and the proceeds of such sale
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0
0
do not satisfy the lien, the balance of the Allowed Secured Claim
shall remain a lien on the unsold portion of said property.
5.2.2 Class 2.2 -- Certain Homesite Purchasers.
Liens created pursuant to Section 365(j) of the Bankruptcy Code
on the Debtor's interests in Homesites shall continue in such
interests or may be transferred from the Debtor's interest in the
particular Homesite in question, and the holders of Allowed
Claims in Class 2.2 shall receive in exchange therefor substitute
liens on property of the Reorganized Company to be determined and
specified in the Confirmation Order ("Substitute Property"). The
value of the Homesites originally subject to the Section 365(j)
lien shall be estimated in a proceeding under Section 502(c) of-
the
f-the Bankruptcy Code prior to confirmation of the Plan. The value
of the Debtor's interests in the Homesites shall not be reduced
or discounted because of the existence of any lien granted after
the Petition Date on the Company's interest in favor of any
entity providing debtor-in-possession or post -confirmation
financing. Each holder of an Allowed Secured Claim in Class 2.2
shall receive cash equal to the value of the lien so estimated in
ten semi-annual installments beginning with the first Payment
Date after such Claim is allowed. The Reorganized Company may
prepay any amounts determined under this Section in whole or in
part. Alternatively, the Debtor may transfer the Substitute
Property to a land trust managed by a trustee for the benefit of
holders of Allowed Class 2.2 Claims, which trustee shall sell the
- 42 -
•
Substitute Property and distribute the net proceeds in full
satisfaction of the Allowed Class 2.2 Claims. All liens on
Substitute Property pursuant to this Section shall be held in the
name of a Trustee pursuant to a trust agreement, who shall
execute any document required to release any lien at the request
of the Reorganized Company upon repayment of the amount
determined pursuant to the terms hereof, and presentation of
appropriate certifications as specified in the trust agreement.
5.2.3 Class 2.3 -- Secured Property Tax Claims.
The holders of Allowed Claims in Class 2.3 shall receive the
amount of their Claim in cash in 10 equal semi-annual
installments beginning on the first Payment Date after the date
the order allowing such Claim becomes a Final Order. Interest
shall accrue on the amount of such Allowed Claim from the
Effective Date of the Plan at such rate of interest as may be
required by Section 1129(b)(2)(A)(i)(II) of the Bankruptcy Code,
which rate of interest shall be fixed in the Confirmation Order.
Accrued interest on the outstanding amount of such Allowed Claim
shall be paid with each installment hereunder. The Reorganized
Company may prepay the amounts required to be paid under this
Section in whole or in part.
5.3 Class 3 -- Priority Claims.
5.3.1 Class 3.1 -- Wages Salaries or
Commissions. Each holder of an Allowed Claim in Class 3.1 will
receive from the Reorganized Company, in full satisfaction of
- 43 -
•
such Claim, cash equal to the amount of such Claim, payable in 10
equal semi-annual installments beginning on the first Payment
Date after the date the Order allowing such Claim became a Final
Order, plus simple interest at such rate of interest as may be
required by Section 1129(a)(9)(B)(i) of the Bankruptcy Code,
which rate of interest shall be fixed in the Confirmation Order,
accruing from the Effective Date.
5.3.2 Class 3.2 -- Employee Benefit Plan
Contributions. Each holder of an Allowed Claim in Class 3.2 will
receive from the Reorganized Company, in full satisfaction of
such Claim, cash equal to the amount of such Claim, payable in 10
equal semi-annual installments beginning on the first Payment -
Date after the date the Order allowing such Claim became a Final
Order, plus simple interest at such rate of interest as may be
required by Section 1129(a)(9)(B)(i) of the Bankruptcy Code,
which rate of interest shall be fixed in the Confirmation Order,
accruing from the Effective Date.
5.3.3 Class 3.3 -- Consumer Deposits. Each
holder of an Allowed Claim in Class 3.3 will receive from the
Reorganized Company, in full satisfaction of.such Claim, cash
equal to the amount of such Claim, payable in 10 equal semi-
annual installments beginning on the first Payment Date after the
date the Order allowing such Claim became a Final Order, plus
simple interest at such rate of interest as may be required by
Section 1129(a)(9)(B)(i) of the Bankruptcy Code, which rate of
- 44 -
•
interest shall be fixed in the Confirmation Order, accruing from
the Effective Date.
5.4 Classes 4, 5, 6, 7, 8, 9, 10, 11 and 12 --
Unsecured Claim Classes.
5.4.1 Aggregate Distributions. The holders of
Allowed Claims in the Unsecured Claim Classes shall, in the
aggregate, receive
(a) New Senior Notes in an aggregate principal amount
of One Hundred Million Dollars ($100,000,000.00),
which shall be allocated among New Secured Senior
Notes and New Unsecured Senior Notes as set forth
below;
(b) New Cash Flow Notes in an aggregate principal
amount of One Hundred Million Dollars
($100,000,000.00), which shall be allocated among
New Secured Cash Flow Notes and New Unsecured Cash
Flow Notes as set forth below; and
(c) Nine Million, Seven Hundred Fifty Thousand
(9,750,000) shares of New Common Stock.
These securities shall be issued pursuant to Section 8.5 of this
Plan, and allocated among holders of Allowed Claims in the
Unsecured Claim Classes in accordance with the provisions of
Section 5.4.2, the special reallocation provisions for certain
classes in Sections 5.5 and 5.6, and the formula set forth in
Exhibit B, which is intended to implement the principles set
- 45 -
11
•
forth in Sections 5.4 through 5.9. In the event of any
inconsistency between Sections 5.4 through 5.9 and the formula in
Exhibit B, Exhibit B shall control.
5.4.2 Initial Allocations. For purposes of
calculating the distributions under this Plan, the following
amounts of the securities described in Section 5.4.1 shall be
determined for each holder of an Allowed Claim in any of the
Unsecured Claim Classes (the "Initial Allocations"): (a) New
Senior Notes in a principal amount equal to One Hundred Million
Dollars ($100,000,000) multiplied by the Initial Allocation
Ratio; (b) New Cash Flow Notes in a principal amount equal to One
Hundred Million Dollars ($100,000,000) multiplied by the Initial
Allocation Ratio; and (c) a number of shares of New Common Stock
equal initially to Nine Million, Seven.Hundred Fifty Thousand
(9,750,000) multiplied by the Initial Allocation Ratio. The
actual principal amounts of New Senior Notes and New Cash Flow
Notes and the actual number of shares of New Common Stock to be
allocated to each holder of an Allowed claim in any Unsecured
Claim Class shall be computed as set forth in Exhibit B.
5.5 Treatment of Senior Debt Classes
5.5.1 Class 4 -- Revolving Credit Claims. (a)
The holders of Allowed Claims in Class 4 will receive (1) New
Secured Senior Notes in an aggregate principal amount equal to
the sum of $15,000,000 plus the Interim Class 4 Calculation
Amount; (2) New Secured Cash Flow Notes in an aggregate principal
- 46 -
amount equal to the sum of $15,000,000 plus the Interim Class 4
Calculation Amount; and (3) An aggregate number of shares of New
Common Stock equal to the Interim Class 4 Calculation Amount
minus a number of shares having a projected value on the
Confirmation Date of $30,000,000. The holders of Allowed Claims
in Class 4 shall receive different distributions from those
received by the holders of Allowed Claims in the other Unsecured
Claim Classes in consideration of their agreement to provide the
New Revolving Credit Facility and to accept a lower interest rate
on their New Senior Notes and New Cash Flow Notes.
(b) (1) All New Senior Notes distributed to the
holders of Allowed Claims in Class 4 shall be New Secured Senior
Notes. The annual interest rate on the New Secured Senior Notes
will be the Manufacturers Hanover Reference Rate plus one percent
(1%), provided, that the interest rate on such Notes will not be
less than eight percent (8%) or more than twelve percent (12%).
The maturity date will be December 15, 1996. The New Secured
Senior Notes shall be secured by second liens on all the property
of the Reorganized Company, except for the property securing the
New Secured Cash Flow Notes.
(2) All New Cash Flow Notes distributed to the
holders of Allowed Claims in Class 4 shall be New Secured Cash
Flow Notes. The annual interest rate on the New Secured Cash
Flow Notes will be the Manufacturers Hanover Reference Rate plus
two percent (2%), provided, that the interest rate on such Notes
- 47 -
•
will not be less than nine percent (9%) or more than thirteen
percent (13%). The maturity date will be December 15, 1998. The
New Secured Cash Flow Notes shall be secured by a first lien on
assets having cash flow attributes with a coverage ratio to be
agreed upon by the Debtor, the Creditors' Committee and the
holders of such Allowed Claims.
(c) All distributions to holders of Allowed Claims in
Class 4 shall be allocated among the holders of Allowed Class 4
Claims pursuant to the provisions of the Revolving Credit
Agreement.
5.5.2 Class 5 -- Letter of Credit Claims. Each
holder of an Allowed Claim in Class 5 shall receive (a) New
Unsecured Senior Notes in a principal amount determined by
multiplying the New Note Distribution Amount for such Notes by
the holder's Distribution Ratio; (b) New Unsecured Cash Flow
Notes in a principal amount determined by multiplying the New
Note Distribution Amount for such Notes by the holder's
Distribution Ratio; and (c) a number of shares of New Common
Stock equal to such holder's Interim Calculation Amount plus the
New Stock Supplemental Distribution Amount.
5.5.3 Class 6 -- Unsecured CR Lender Claims.
Each holder of an Allowed Claim in Class 6 shall receive (a) New
Unsecured Senior Notes in a principal amount determined by
multiplying the New Note Distribution Amount for such Notes by
the holder's Distribution Ratio; (b) New Unsecured Cash Flow
- 48 -
Notes in a principal amount determined by multiplying the New
Note Distribution Amount for such Notes by the holder's
Distribution Ratio; and (c) a number of shares of New Common
Stock equal to such holder's Interim Calculation Amount plus the
New Stock Supplemental Distribution Amount.
5.6 Treatment of Subordinated Debt Classes
For purposes of distributions under the Plan, and to
give effect to subordination provisions contained in the
Prudential Senior Note Agreement, the Public Senior Subordinated
Note Indenture, and the Junior Subordinated Indenture Debenture,
Classes 7, 8, and 9 will receive the treatment set forth below,
and the Initial Allocations to holders of Allowed Claims in those
Classes will be reallocated as described below.
Note Claim.
5.6.1 Class 7 -- Prudential Senior Subordinated
(a) The holder of the Allowed Claim in Class 7
shall receive Four Hundred Twenty -Four Thousand (424,000) shares
of New Common Stock.
(b) Subject to Section 5.6.5, all New Senior
Notes, New Cash Flow Notes, or New Common Stock that were
allocated to the holder of the Class 7 Allowed Claim under the
Initial Allocations or were reallocated to such holder pursuant
to Section 5.6.3 will be reallocated to the holders of Allowed
Claims in Class 4 and included in the calculation of the Interim
Class 4 Calculation Amount.
- 49 -
Claims.
5.6.2 Class 8 -- Public Senior Subordinated Note
(a) The holders of Allowed Claims in Class 8
shall receive Seven Hundred Six Thousand (706,000) shares of New
Common Stock.
(b) Subject to Section 5.6.5, all New Senior
Notes, New Cash Flow Notes, or New Common Stock, that were
allocated to holders of Allowed Claims in Class 8 under the
Initial Allocations or that were reallocated to such holders
pursuant to Section 5.6.3 shall, subject to Section 5.6.2(c), be
reallocated to the holders of Allowed Claims in Classes 4, 5, and
6 in accordance with the formula set forth in Exhibit B and
included in the calculation of the Interim Calculation Amount for
such holders.
(c) For purposes of such reallocations and
Exhibit B, (1) holders of Allowed Claims in Class 5 (Letter of
Credit Claims) shall be deemed to be "Senior Debt" within the
meaning of Article Twelve of the Public Senior Subordinated Note
Indenture to the extent of sixty percent (60%) of their Allowed
Claims; and (2) holders of Allowed Claims in Class 6 (Unsecured
CR Lender Claims) shall be deemed to be "Senior Debt" within the
meaning of the Public Senior Subordinated Note Indenture to the
extent of thirty percent (30%) of their Allowed Claims.
(d) All distributions to the holders of Allowed
Claims in Class 8 under this Section shall be distributed among
- 50 -
•
•
such holders pursuant to the terms of the Public Senior
Subordinated Note Indenture and this Plan.
(e) As of the close of business on the
Confirmation Date, the transfer ledgers of the Public Senior
Subordinated Notes shall be closed, and there shall be no further
changes in the holders of record thereof. The Company and U.S.
Trust shall have no obligations to recognize any transfer of
Public Senior Subordinated Notes occurring after the Confirmation
Date. The Company and U.S. Trust shall be entitled instead to
recognize and deal for all purposes herein with only those
holders of record stated on the transfer ledgers of U.S. Trust
for the Public Senior Subordinated Notes as of -the close of
business on the Confirmation Date.
Only those holders of record as of the close of
business on a record date to be specified in the Disclosure
Statement shall be recognized for the purpose of being entitled
to vote on the Plan.
(f) Any distributions to which the holders of the
Public Senior Subordinated Notes are entitled shall be made to
U.S. Trust for the benefit of the holders of the Senior
Subordinated Notes in accordance with the provisions of this
Section 5.6.2 and other provisions of the Plan.
(g) No holder of Public Senior Subordinated Notes
shall be entitled to receive any distribution from U.S. Trust
respecting such Claim unless and until such holder shall have
- 51 -
first either (1) surrendered or caused to be surrendered to U.S.
Trust the original debentures held by the holder, or (2) in the
event that such holder is unable to surrender the original
debenture because same has been lost, destroyed, stolen or
mutilated, (a) furnished U.S. Trust with an executed affidavit of
loss and indemnity with respect thereto in form customarily
utilized for such purposes that is reasonably satisfactory to
U.S. Trust and to the Company and (b) provided to U.S. Trust a
bond in such amount and form as U.S. Trust and the Company shall
direct, sufficient to indemnify U.S. Trust and the Company
against any claim that may be made against U.S. Trust or the
Company on account of the alleged loss, theft or distribution of
any such certificate or the distribution of property hereunder.
The method and procedure to be followed for surrendering
debenture certificates and for providing affidavits and bonds
shall be prescribed by Debtor upon reasonable notice to holders
of the Public Senior Subordinated Notes. Promptly upon surrender
of such instruments, U.S. Trust shall cancel such debentures and
deliver such cancelled debentures to the Company or otherwise
dispose of such debentures in such manner as the Company may
request. In accordance with Section 1143 of the Bankruptcy Code,
in the event a holder of Public Senior Subordinated Notes fails
to surrender his debenture certificates or provide an affidavit
and adequate bond on or before the third anniversary of the
Effective Date, such holder shall be conclusively deemed to have
- 52 -
received its distribution under the Plan, and all such property
(i.e., shares of New Common Stock) not claimed by such holder
shall be distributed pro rata to all other holders of Public
Senior Subordinated Notes. U.S. Trust shall be compensated by
the Company for services rendered from and after the Effective
Date in effectuating the surrender and cancellation of debenture
certificates provided under this Section 5.6.2(8) and in
effectuating the distribution contemplated by the Plan to the
holders of the Public Senior Subordinated Notes provided under
Section 5.6.2(a) hereinabove, including the reasonable
compensation, disbursements, and expenses of the agents and legal
counsel of U.S. Trust and shall be indemnified.by the Company for
any loss, liability or expense incurred by it in connection with
the performance of such duties to the same extent and in the same
manner as provided in the Public Senior Subordinated Note
Indenture.
(h) Nothing in this Plan shall be deemed to
affect any rights of U.S. Trust under the Public Senior
Subordinated Note Indenture to apply distributions under Section
5.6.2(a) to U.S. Trust's claims for compensation or for
reimbursement of costs, expenses and disbursements (including
those of its agents and attorneys) under Article Six of the
Public Senior Subordinated Note Indenture or any lien in such
distributions granted to U.S. Trust to secure such claims.
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Claims.
•
5.6.3 Class 9 -- Junior Subordinated Debenture
(a) Notwithstanding any provision in the Junior
Subordinated Debenture Indenture to the contrary, the holders of
Allowed Claims in Class 9 shall receive Two Hundred Thousand
(200,000) shares of New Common Stock.
(b) Subject to Section 5.6.5, all New Senior
Notes, New Cash Flow Notes, or New Common Stock that were
allocated to holders of Allowed Claims in Class 9 under the
Initial Allocations shall, subject to Section 5.6.3(c), be
reallocated to the holders of Allowed Claims in Classes 4, 5, 6,
7 and 8, in accordance with the formula set forth in Exhibit B. -
(c) For purposes of such reallocations and
Exhibit B, (1) holders of Allowed Claims in Class 5 (Letter of
Credit Claims) shall be deemed to be "Senior Debt" within the
meaning of the Junior Subordinated Debenture Indenture to the
extent of sixty percent (60%) of their Allowed Claims, and (2)
holders of Allowed Claims in Class 6 (Unsecured CR Lender Claims)
shall be deemed to be "Senior Debt" within the meaning of the
Junior Subordinated Debenture Indenture to the extent of thirty
percent (30%) of their Allowed Claims.
(d) All distributions to the holders of Allowed
Claims in Class 9 under this Section shall be distributed among
such holders pursuant to the terms of the Junior Subordinated
Debenture Indenture and the Plan.
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0
(e) As of the close of business on the
Confirmation Date, the transfer ledgers of the Junior
Subordinated Debentures shall be closed, and there shall be no
further changes in the holders of record thereof. The Company
and Bankers Trust shall have no obligations to recognize any
transfer of Junior Subordinated Debentures occurring after the
Confirmation Date. The Company and Bankers Trust shall be
entitled instead to recognize and deal for all purposes herein
with only those holders of record stated on the transfer ledgers
of Bankers Trust for the Junior Subordinated Debentures as of the
close of business on the Confirmation Date.
Only those holders of record as.of the close of
business on a record date to be specified in the Disclosure
Statement shall be recognized for the purpose of being entitled
to vote on the Plan.
(f) Any distributions to which the holders of the
Junior Subordinated Debentures are entitled shall be made to
Bankers Trust, for the benefit of the holders of the Junior
Subordinated Debentures in accordance with the provisions of this
Section 5.6.3 and other provisions of the Plan.
(g) No holder of Junior Subordinated Debentures
shall be entitled to receive any distribution from Bankers Trust
respecting such claim unless and until such holder shall have
first either (1) surrendered or caused to be surrendered to
Bankers Trust the original debentures held by the holder, or
- 55 -
(2) in the event that such holder is unable to surrender the
original debenture because same has been lost, destroyed, stolen
or mutilated, (a) furnished Bankers Trust with an executed
affidavit of loss and indemnity with respect thereto in form
customarily utilized for such purposes that is reasonably
satisfactory to Bankers Trust and to the Company and (b) provided
to Bankers Trust a bond in such amount and form as Bankers Trust
and the Company shall direct, sufficient to indemnify Bankers
Trust and the Company against any claim that may be made against
Bankers Trust or the Company on account of the alleged loss,
theft or distribution of any such certificate or the distribution
of property hereunder. The method and procedure to be followed_
for surrendering debenture certificates and for providing
affidavits and bonds shall be prescribed by Debtor upon
reasonable notice to holders of the Junior Subordinated
Debentures. Promptly upon surrender of such instruments, Bankers
Trust shall cancel such debentures and deliver such cancelled
debentures to the Company or otherwise dispose of such debentures
in such manner as the Company may request. In accordance with
Section 1143 of the Bankruptcy Code, in the event a holder of
Junior Subordinated Debentures fails to surrender his debenture
certificates or provide an affidavit and adequate bond on or
before the third anniversary of the Effective Date, such holder
shall be conclusively deemed to have received its distribution
under the Plan, and all such property not claimed by such holder
- 56 -
shall be distributed pro rata to all other holders of Junior
Subordinated Debentures. Bankers Trust shall be compensated by
the Company for services rendered from and after the Effective
Date in effectuating the surrender and cancellation of debenture
certificates provided under this Section 5.6.3(g) and in
effectuating the distribution contemplated by the Plan to the
holders of the Junior Subordinated Debentures provided under
Section 5.6.3(a) hereinabove, including the reasonable
compensation, disbursements, and expenses of the agents and legal
counsel of Bankers Trust and shall be indemnified by the Company
for any loss, liability or expense incurred by it in connection
with the performance of such duties to the same extent and in the
same manner as provided in the Junior Subordinated Debenture
Indenture.
(h) Nothing in this Plan shall be deemed to
affect any rights of Bankers Trust under the Junior Subordinated
Debenture Indenture to apply distributions under Section 5.6.3(a)
to Bankers Trust's claims for compensation or for reimbursement
of costs, expenses and disbursements (including those of its
agents and attorneys) under the Junior Subordinated Debenture
Indenture or any lien in such distributions granted to Bankers
Trust to secure such claims.
5.6.4 Treatment of Senior Debt; Waiver of
Subordination. The distributions under the Plan take into
account the relative priority of the Claims among the classes in
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connection with any contractual subordination provisions relating
thereto. Accordingly, any provision of the Plan, the Prudential
Agreement, the Public Senior Subordinated Note Indenture, or the
Junior Subordinated Debenture Indenture to the contrary
notwithstanding, the distributions to Classes 7, 8 or 9 shall not
be subject to levy, garnishment, attachment or other legal
process by any holder of Senior Debt (as such term is defined in
the applicable agreement or indenture) by reason of claimed
contractual subordination rights.
Each holder of a Claim that might be the beneficiary of
any subordination provision in the Prudential Agreement, the
Public Senior Subordinated Note Indenture, or the Junior
Subordinated Note Indenture, by virtue of the confirmation of the
Plan by the Court, the acceptance of the Plan by the holders of
the requisite number and amount of each Class of Claims, the
acceptance of the Plan by the holder, or the acceptance by the
holder of any payment or distribution made under the Plan, shall
be deemed to have waived, released and relinquished any and all
rights to the payments or distribution to be made in respect of
Claims in Classes 7, 8 or 9 under the Plan. . In particular,
acceptance of the Plan by such holders shall constitute an
express acknowledgement of and consent to the distributions to be
made under the Plan to the holders of Allowed Class 9 Claims,
notwithstanding the fact that, in light of the financial
condition of the Debtor, under a strict application of the terms
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•
of the Junior Subordinated Debenture Indenture, Class 9 would not
be entitled to receive any distribution.
5.6.5 Interim Calculation Amount.
(a) Notwithstanding any provision of this Section
5.6, the holders of the Allowed Claims in Classes 7, 8 and 9
shall retain the shares of New Common Stock they are entitled to
receive under Section 5.6.1(a), 5.6.2(a), and 5.6.3(a),
respectively.
(b) For purposes of determining the Interim
Calculation Amount, the number of shares to be received by the
Unsecured Claim Classes other than Classes 7, 8 or 9 shall be
adjusted pursuant to Exhibit B to reflect the distributions
provided for in Section 5.6.5(a) above.
5.7 Class 10 -- Home and Homesite Purchaser Claims.
Each holder of an Allowed Claim in Class 10 shall receive (a) New
Unsecured Senior Notes in a principal amount determined by
multiplying the New Note Distribution Amount for such Notes by
the holder's Distribution Ratio; (b) New Unsecured Cash Flow
Notes in a principal amount determined by multiplying the New
Note Distribution Amount for such Notes by the holder's
Distribution Ratio; and (c) a number of shares of New Common
Stock equal to such holder's Interim Calculation Amount plus the
New Stock Supplemental Distribution Amount.
5.8 Class 11 -- Government Development Claims. Each
holder of an Allowed Claim in Class 11 shall receive (a) New
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Unsecured Senior Notes in a principal amount determined by
multiplying the New Note Distribution Amount for such Notes by
the holder's Distribution Ratio; (b) New Unsecured Cash Flow
Notes in a principal amount determined by multiplying the New
Note Distribution Amount for such Notes by the holder's
Distribution Ratio; and (c) a number of shares of New Common
Stock equal to such holder's Interim Calculation Amount plus the
New Stock Supplemental Distribution Amount. In the event such
holder is unable to retain all or any portion of such
distributions, such holder may receive distributions of other
property of the Company in lieu of distributions of New Common
Stock, New Senior Notes and New Cash Flow Notes.
5.9 Class 12 -- General Unsecured Claims. Each holder
of an Allowed Claim in Class 12 shall receive (a) New Unsecured
Senior Notes in a principal amount determined by multiplying the
New Note Distribution Amount for such Notes by the holder's
Distribution Ratio; (b) New Unsecured Cash Flow Notes in a
principal amount determined by multiplying the New Note
Distribution Amount for such Notes by the holder's Distribution
Ratio; and (c) a number of shares of New Common Stock equal to
such holder's Interim Calculation Amount plus the New Stock
Supplemental Distribution Amount.
5.10 Class 13 -- Convenience Class. Each holder of
Allowed Claims in Class 13 will receive a single cash payment in
a percentage to be determined by the Debtor and the Creditors'
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Committee of his or her Allowed Claim within ten days after the
entry of the Final order allowing the Claim.
5.11 Class 14 -- Utility Claims. Future requests of
deeded Homesite Purchasers for utility service will be satisfied
by inclusion in the utility program described in Section 7.7.
All other Claims of holders of Class 14 Claims will be
discharged.
5.12 Class 16 -- Non -compensatory Claims. The holders
of Claims in Class 16 will receive no distribution on account of
such claims. All such Claims will be discharged.
5.13 Class 17 -- Securities Violation Claims. The
holders of Class 17 Claims will receive no distribution on
account of their Claims. All such Claims will be discharged.
5.14 Class 18 -- Shareholder Interests. The holders of
Class 18.1 and Class 18.2 Interests will receive no distribution
on account of their Interests. All such Shareholder Interests
will be discharged. The Common Stock and the Preferred Stock
will be cancelled as of the Effective Date.
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS AND LEASES
All executory contracts and leases that have not been
assumed or rejected as of the Confirmation Date shall be deemed
to be rejected by the Debtor on the Confirmation Date, except for
those executory contracts as to which the Debtor files motions to
assume with the Bankruptcy Court no later than 30 days prior to
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the date set for hearing on confirmation of the Plan; provided,
however, that the Debtor shall be required to assume or reject a
Homesite Purchase Contract within 60 days after expiration of the
opportunity for the Homesite Purchaser under such Contract to
elect to accept or decline the Contract Amendment pursuant to the
Homesite Program; and provided, further, that the Debtor reserves
the right to change its election with respect to the acceptance
or rejection of any executory contract or lease at any time prior
to the Confirmation Date. Any party asserting a Claim pursuant
to Section 365 of the Bankruptcy Code arising from an executory
contract or lease rejected pursuant to this Article who has
timely filed a proof of claim may amend its proof of Claim within
30 days of the Confirmation Date; provided, however, that claims
arising from the rejection of a Homesite Purchase Contract may be
filed within 30 days of the date of the rejection of such
Homesite Purchase Contract regardless of whether the claimant has
previously filed a proof of claim.
ARTICLE VII
BUSINESS AND OPERATIONS OF THE REORGANIZED COMPANY
7.1 Title to Assets and Organizational Structure
(a) Upon the Effective Date, title to all assets of
the Company shall be vested in the Reorganized Company, free and
clear of all liens, Claims, interests and encumbrances whatsoever
other than as specifically set forth in this Plan.
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(b) The name of the Reorganized Company may be changed
as of the Effective Date.
(c) The Reorganized Company shall have the following
direct subsidiaries. Each subsidiary shall continue to own and
operate the assets which it owned as of the Effective Date,
except as expressly noted:
(1) General Development Utilities, Inc.
(2) General Development Management Co.
(3) Florida Home Finders, Inc.
(4) Town and Country II, Inc. (formerly Florida
Residential Communities, Inc.)
(5) Cumberland Cove, Inc. ("CCI"). In order to
enable the Reorganized Company to consolidate its business
operations in Tennessee in a stand-alone Tennessee subsidiary,
all assets of the Debtor located in the State of Tennessee,
including a platted and unplatted residential community
development known as "Cumberland Lakes" located in Putnam County,
Tennessee, real property owned by it that is located in White
County, Tennessee, and related marketing operations and assets,
notalready owned by CCI will be conveyed upon the Effective Date
to CCI.
(6) General Development Resorts, Inc.
(7) General Development Financial Services, Inc.
(8) Environmental Quality Laboratory, Inc.
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•
•
(d) The Debtor expects that the remaining Debtor
Subsidiaries, Five Star Homes, Inc., Five Star Homes Group, Inc.,
and GDV Financial Corp. will be dissolved or merged into the
Reorganized Company or another subsidiary of the Reorganized
Company pursuant to the terms of the plans of reorganization for
such Debtor Subsidiaries.
(e) All direct or indirect inactive subsidiaries and
Affiliates of the Company will be dissolved or merged into the
Reorganized Company on the Effective Date.
7.2 Authorized Activities.
(a) The Reorganized Company shall continue to be
incorporated under the laws of the State of Delaware and shall
have full corporate authority to engage in all lawful activities
under the General Corporation Law of the State of Delaware.
(b) The Reorganized Company shall adopt as of the
Effective Date an amended and restated certificate of
incorporation and bylaws containing provisions consistent with
the terms of this Plan and such other terms and conditions as
proposed by the Debtor and the Creditors' Committee prior to the
Effective Date. The certificate of incorporation shall authorize
the issuance of not more than Ten Million (10,000,000) shares of
New Common Stock. Shares of New Common Stock not issued pursuant
to this Plan,shall be available for issuance pursuant to employee
stock plans or as additional consideration for new loans to the
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0
•
Reorganized Company, as agreed to by the Debtor and the
Creditors' Committee before the Effective Date.
7.3 Directors and Management.
(a) Directors. Upon the Effective Date, the Board of
Directors of the Reorganized Company shall consist of members in
a number to be determined and disclosed in the Disclosure
Statement. There shall be three classes of directors, who shall
serve for initial three-year terms commencing on the Effective
Date. At the expiration of such initial terms, the Class 1
directors' replacements shall be elected for one-year terms, the
Class 2 directors' replacements shall be elected for two-year
terms, and the Class 3 directors' replacements shall be elected
for three-year terms. Thereafter, each director's replacement
shall be elected for a three-year term. The names of the initial
directors shall be identified in the Disclosure Statement.
(b) Management. The amended and restated bylaws of
the Reorganized Company to be adopted pursuant to Section 7.2(b)
shall designate the officers of the Reorganized Company and
specify their tenure. The persons who will hold such offices as
of the Effective Date will be identified in the Disclosure
Statement.
7.4 Compliance With Consent Judcrment. The Final
Judgment shall apply to and be fully binding on the Reorganized
Company, its subsidiaries, and its affiliates and their
respective officers, agents, employees, successors and assigns,
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and all other persons in active concert or participation with
them, directly or indirectly, who receive actual notice of the
Final Judgment.
7.5 Homesite Program. The Reorganized Company shall
be bound by and shall comply with all the provisions of the
Homesite Program, which are incorporated by reference hereto.
The Reorganized Company shall be bound by and comply with all the
provisions of the Land Trust Agreements applicable to the Debtor.
7.6 Improvement Obligations Agreement. Pursuant to
Section 8 of the Improvement Obligations Agreement, upon the
Effective Date, the Agreement shall terminate and all funds
remaining on deposit in the Segregated Account (as defined in the
Improvement Obligations Agreement) shall be released to the
Reorganized Company and maintained by it in a special account to
be used for development expenditures under the Homesite Program.
The Reorganized Company shall neither disburse nor
authorize the disbursement of any of the remaining funds on
deposit in the Segregated Account before entering into an
Improvement Trust Agreement with the Florida Division of Land
Sales, Condominiums and Mobile Homes ("Division") applicable to
those funds. The form of such Improvement Trust, which shall
comply with the requirements of Section 498.039(5), Florida
Statutes (1989), and Florida Administrative Code Rule 7D-6.006,
shall be agreed upon by the Debtor, the Creditors' Committee and
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the Division prior to the Confirmation Date and included as an
Exhibit to this Plan.
7.7 Utility Program. The Reorganized Company will
establish a reserve of cash and/or utility -satisfied lots in an
amount to be set forth in the Confirmation Order, which shall be
subject to annual limitations set forth in the Confirmation Order
on the amounts that can be applied from such reserves to satisfy
requests for utility service by any Homesite Purchaser who has
received a deed prior to the Petition Date, regardless of whether
such Homesite Purchaser filed a proof of claim. The right to
participate in this program will not be transferable.
ARTICLE VIII
MEANS OF IMPLEMENTATION OF THE PLAN
8.1 Funding of Plan. The Reorganized Company will
obtain from the banks providing the Term Loan an initial
revolving credit facility in an amount not to exceed $20,000,000
at confirmation (the "New Revolving Credit Facility"), which loan
may be used to fund payment of Administrative Claims, Allowed
Priority Claims, Class 13 Allowed Claims, and working capital
needs of the Reorganized Company. The interest rate on the New
Revolving Credit Facility will be the Manufacturers Hanover
Reference Rate plus three percent (3%) per annum. The maturity
date will be December 15, 1993. The New Revolving Credit
Facility will be secured pari passu by a first lien on the assets
securing the Term Loan. The New Revolving Credit Facility shall
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•
be governed by a Loan Agreement and other documentation
satisfactory to the Debtor, the Creditors' Committee and the New
Revolving Credit Facility lenders.
8.2 Estimation of Claims. Confirmation of the Plan
shall be conditioned on the entry of Final Orders estimating the
following Claims for purposes of voting under Bankruptcy Rule
3018 and allowance and distribution pursuant to Section 502(c) of
the Bankruptcy Code, other than those that have previously been
allowed by a Final Order or pursuant to the Plan: (a) CR Lender
Claims; (b) Claims arising from agreements by the Company to
repurchase or guarantee the repurchase of mortgage loans sold by
GDV Financial Corporation, a subsidiary of the -Company; (c)
Letter of Credit Claims; (d) Government Development Claims; (e)
Claims for refunds arising from the cancellation of Homesite
Purchase Contracts; (f) Priority Claims; and (g) Secured Claims
(other than CR Lender Secured Claims).
8.3 Disbursing Agent.
8.3.1 Appointment.
(a) By provision of the Confirmation Order or a
supplemental Order, the Bankruptcy Court shall appoint a
Disbursing Agent to administer the Disbursement Account in
accordance with the terms of the Plan and Confirmation Order, and
shall designate the amount and terms of payment of the Disbursing
Agent's fee. Such Disbursing Agent shall be a national or state
bank approved by the Bankruptcy Court whose capital and surplus
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•
as of December 31, 1990 shall exceed $100 million. Such
Disbursing Agent shall serve without bond, unless the Court
requires a bond. The Reorganized Company shall be responsible
for all fees of the Disbursing Agent.
(b) No entity shall be approved as Disbursing
Agent until it executes and files a statement with the Bankruptcy
Court (i) agreeing to perform all of the duties of Disbursing
Agent under the Plan, and (ii) consenting to the jurisdiction of
the Bankruptcy Court in respect of all matters relating to the
performance of its duties as Disbursing Agent under the Plan.
8.3.2 Recordkeeping and Transfer Agent
Responsibilities. The Disbursing Agent shall maintain records of
all Allowed Claims and all Disputed Claims, including the amount
and classification of each such Claim, the name and address of
the holder, the face amount of New Senior Notes, New Cash Flow
Notes and/or the number of shares of New Common Stock issued to
the holder of the Claim, and the amount of each periodic
distribution with respect thereto. The Disbursing Agent shall
update these records as required to reflect changes in any of the
information maintained with respect to the Claims, including the
change in status of previously Disputed Claims that have become
Allowed Claims.
The Reorganized Company shall also appoint a third
party, independent registrar, approved by the Bankruptcy Court,
which may be the same entity as the Disbursing Agent. The
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registrar shall countersign all certificates of New Common Stock
and deposit them with the Disbursing Agent for distribution in
accordance with the provisions of the Plan. Thereafter, the
registrar shall maintain appropriate records of the names and
addresses of all shareholders and will act as transfer agent for
the New Common Stock and dividend paying agent for the New Common
Stock. The Reorganized Company shall bear all expenses of the
registrar and may change registrars at any time or from time to
time.
Immediately after and to the extent that a Disputed
Claim becomes an Allowed Claim by virtue of a Final Order, the
Disbursing Agent shall amend the records maintained in accordance
with Section 8.3.2 hereof to delete such Disputed Claim from the
list of Disputed Claims and add it, in the amount Allowed, to the
list of Allowed Claims. Immediately after and to the extent that
a Disputed Claim is disallowed by virtue of a Final Order, the
Disbursing Agent shall amend such records to delete such Disputed
Claim from the list of Disputed Claims.
8.3.3 Indentures. The Company shall enter into
Indentures, approved by the Debtor and the Creditors' Committee
prior to the Confirmation Date, with one or more Indenture
Trustees to hold and administer the New Unsecured Senior Notes
and the New Unsecured Cash Flow Notes on behalf of the holders
thereof.
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It •
•
8.4 Creation of Disbursement Account. Prior to the
Effective Date, the Disbursing Agent shall establish one or more
special accounts (the "Disbursement Account") to be used for the
purpose of making all payments on the New Senior Notes and New
Cash Flow Notes under this Plan and for holding New Senior Notes,
New Cash Flow Notes, and New Common Stock. All property received
by the Disbursing Agent from the Reorganized Company shall be
deposited into the Disbursement Account, shall be held in trust
for the holders of Allowed Claims, shall not be commingled with
the general assets of the Disbursing Agent, and shall not be
subject to any claim by any person or entity except as provided
in this Plan. Cash in the Disbursement Account shall be invested
in obligations of the United States Treasury having maturities
not exceeding 180 days or in such other manner required to ensure
the availability of sufficient funds to make all payments
specified in this Plan at the times specified for such payments.
8.5 Issuance of New Senior Notes, New Cash Flow Notes
and New Common Stock.
(a) On the Issuance Date, the Reorganized Company
shall issue to the holders of Allowed Claims.in Class 4 New
Secured Senior Notes and New Secured Cash Flow Notes, each in an
aggregate principal amount determined in accordance with Section
5.5.1.
(b) On the Issuance Date, the Reorganized Company
shall issue and deposit with the Disbursing Agent New Senior
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•
Notes in an aggregate principal amount of One Hundred Million
Dollars ($100,000,000.00) minus the amounts distributed pursuant
to Section 8.5(a), and New Cash Flow Notes in an aggregate
principal amount of One Hundred Million Dollars ($100,000,000.00)
minus the amounts distributed pursuant to Section 8.5(a). The
Reorganized Company shall deposit with the registrar Nine Million
Seven Hundred Fifty Thousand (9,750,000) shares of New Common
Stock.
(c) The Disbursing Agent shall hold such securities
until distributed pursuant to the Plan. The New Senior Notes and
the New Cash Flow Notes shall be distributed to the holders of
Allowed Claims in the Unsecured Claim Classes in accordance with
the provisions of Sections 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9. The
New Senior Notes and New Cash Flow Notes shall be issued in
principal amounts of $100 or multiples thereof. The amount of
such Notes to be issued to a holder of an Allowed Claim in an
Unsecured Claim Class will be reduced to the nearest multiple of
$100. Shares of the New Common Stock shall be issued and
distributed to the holders of Allowed Claims in the Unsecured
Claim Classes in accordance with the provisions of Sections 5.4,
5.5, 5.6, 5.7, 5.8 and 5.9. Fractional shares of New Common
Stock will not be issued. The number of shares issued to a
holder of an Allowed Claim in an Unsecured Claim Class will be
reduced to the nearest whole number. The Disbursing Agent shall
make an initial distribution of New Senior Notes, New Cash Flow
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•
Notes, and New Common Stock as soon as practicable after the
Issuance Date.
(d) The New Senior Notes, the New Cash Flow Notes, and
the shares of New Common Stock remaining after the distributions
described in the preceding subsection, which are attributable to
the Disputed Claims in the Unsecured Claim Classes, shall be
maintained by the Disbursing Agent as a Disputed Claims Reserve
pursuant to Section 8.7.
(e) Notwithstanding any other provision of this Plan,
no holder of a debenture, bond, promissory note, payment
guarantee or other transferable instrument ("Debt Instrument")
shall receive any distribution with respect to such Debt
Instrument until such Debt Instrument has been surrendered to, or
satisfactory evidence of loss has been provided to, the
Disbursing Agent or in accordance with the provisions of Sections
5.6.2(g) and 5.6.3(g) hereof.
(f) New Common Stock held in the Disputed Claims
Reserve under this Plan shall not be entitled to vote until
distributed to the holder of an Allowed Claim.
(e) Pursuant to Section 1146(c) of the Bankruptcy
Code, the issuance, transfer or exchange of securities pursuant
to this Plan, or the transfer of, or creation of any lien on, any
property of the Debtor pursuant to this Plan or pursuant to an
order of the Bankruptcy Court prior to the Effective Date, shall
not be taxed under any law imposing a stamp tax or similar tax.
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8.6 Disbursements.
(a) Upon entry of a Final Order allowing any
Administrative Claim required to be paid upon effectiveness of
the Plan, any Allowed Class 3 Claim, and any Allowed Class 13
Claim, the Reorganized Company shall deposit with the Disbursing
Agent funds sufficient to pay the holder of the Claim the amount
of such Allowed Claim and any interest to which such party may be
entitled under this Plan. The Disbursing Agent shall thereafter
promptly make the payment due to the holder of such Claim.
(b) On the third business day prior to each Payment
Date, the Reorganized Company shall deposit with the Disbursing
Agent funds sufficient to pay accrued interest on the New Senior
Notes that is due on such Payment Date. For purposes of
determining the amount to be deposited pursuant to the preceding
sentence, all New Senior Notes held in the Disputed Claims
Reserve at the time of such payment shall be deemed to have
accrued interest at the rate of twelve percent (12%) per annum.
The Disbursing Agent shall then make all interest payments
required to be made on New Senior Notes distributed to holders of
Allowed Claims. The Disbursing Agent shall hold in the
Disbursement Account all funds not so paid to holders of New
Senior Notes.
(c) (1) Prior to each Payment Date, the Reorganized
Company shall determine the amount of Available Cash. Available
Cash for any Payment Period shall be applied in the following
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order: (A) to payments of accrued and unpaid interest on the New
Cash Flow Notes; (B) to prepayments of principal of the Term
Loan, until such loan is paid in full; (C) to prepayments of
principal on the New Senior Notes, until such Notes are paid in
full; and (D) to prepayments of principal on the New Cash Flow
Notes, until such Notes are paid in full.
(2) On the third business day prior to each
Payment Date, the Reorganized Company shall deposit with the
Disbursing Agent any Available Cash that is to be applied to the
payments specified in Section 8.6(c)(1)(A), (C) or (D). Any
Available Cash to be applied pursuant to Section 8.6(c)(1)(B)
shall be paid directly to the agent under the Term Loan.
(3) For purposes of determining the amount to be
deposited pursuant to the preceding sentence, all New Cash Flow
Notes held in the Disputed Claims Reserve at the time of such
payment shall be deemed to have accrued interest at the rate of
thirteen percent (13%) per annum. The Disbursing Agent shall
then make all interest payments and principal prepayments
required to be made from Available Cash on New Cash Flow Notes
and New Senior Notes distributed to holders of Allowed Claims.
The Disbursing Agent shall hold in the Disbursement Account all
funds not so paid to holders of New Senior Notes or New Cash Flow
Notes.
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0
8.7 Disputed Claims Reserve.
•
(a) Upon the allowance of a Disputed Claim in an
Unsecured Claim Class, the Disbursing Agent shall, subject to the
provisions of Sections 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9,
distribute to the holder thereof, all New Senior Notes, New Cash
Flow Notes, and shares of New Common Stock, payments of interest,
principal or dividends thereon, and all interest actually earned
on such payments (less amounts referred to Section 8.7(d)),
retained in the applicable special account with respect to the
holder's previously Disputed Claim, to the extent that it is
Allowed.
(b) Upon each anniversary of the Effective Date,
shares of New Common Stock, New Senior Notes, and New Cash Flow
Notes allocated to Disputed Claims in the Unsecured Claim Classes
that have been disallowed by a Final Order, and any payments of
principal, interest or dividends with respect thereto, and all
interest actually earned on such payments (less amounts referred
to Section 8.7(d)), shall be distributed in accordance with the
provisions of Sections 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9, and any
securities and amounts not so distributed shall be retained in
the Disputed Claims Reserve.
(c) Any New Senior Notes or New Cash Flow Notes
distributed to the holders of Claims in Class 4 pursuant to
Section 8.7(b) shall be converted into New Secured Senior Notes
or New Secured Cash Flow Notes, respectively. Holders of Class 4
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Claims who receive New -secured Senior Notes or New Secured Cash
Flow Notes shall be entitled to receive payments of interest on
such Notes (and interest actually earned on such payments) equal
to the amount that would have been payable on such Notes from the
Issuance Date until the date of distribution had such Notes been
issued on such date, and any difference between such amounts and
the amounts deposited with the Disbursing Agent in respect of
such Notes shall be remitted to the Reorganized Company.
(d) The Disbursing Agent shall deduct from all
interest earned on payments of interest, principal or dividends
held in the Disputed Claims Reserve the amount of any taxes it or
the Reorganized Company may be required to pay in respect of such
interest and, to the extent such taxes are payable by the
Company, remit such amounts to the Company.
8.8 Reporting. The Disbursing Agent shall, within
fifteen days after each Payment Date, prepare, file with the
Bankruptcy Court, and deliver to the Creditors' Committee and the
Reorganized Company, a report listing (a) all amounts deposited
into the Disbursement Account and the Disputed Claims Reserve
since the previous Payment Date, and the source thereof, and (b)
all distributions from the Disbursement Account and the Disputed
Claims Reserve since the previous Payment Date, and the recipient
thereof, including all deductions made with respect to tax
payments in accordance with the provisions of Section 8.7(d)
hereof.
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8.9 Estate Administration.
(a) Pursuant to Section 1123(b)(3)(B) of the
Bankruptcy Code, the Creditors' Committee shall be appointed to
act as the representative of the Debtor for purposes of retaining
and enforcing any claims or interests belonging to the Debtor's
estate. The Creditors' Committee shall have the following powers
and duties:
(1) To agree to, object to, and, subject to
Bankruptcy Court approval, compromise any Claim;
(2) To investigate and prosecute, in the name of
"the Estate of General Development Corporation," all claims and
interests possessed by the Debtor, including claims under
Sections 544, 545, 547, 548, 549 and 553 of the Bankruptcy Code,
and to effect recovery pursuant to Section 550.
(3) To retain, subject to Sections 330 and 331 of
the Bankruptcy Code, counsel and other professionals to assist it
in the foregoing functions.
(4) To remit to the Reorganized Company for
distribution pursuant to this Plan all recoveries from causes of
action brought by the Creditors' Committee.
(b) The Reorganized Company shall employ one or more
persons whose duties shall include the responsibility of
overseeing the Estate Administration and who shall be under the
direction and control of the Creditors' Committee for purposes of
Estate Administration.
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(c) The fees and expenses of the Creditors' Committee
and of any professionals retained by the Creditors' Committee, as
approved by the Bankruptcy Court, shall be funded by the
Reorganized Company.
(d) The management and employees of the Reorganized
Company shall cooperate with and assist the Creditors' Committee
in the performance of its functions.
8.10 Registration Under Securities Exchange Act. The
Reorganized Company shall take all necessary steps to register
the New Unsecured Senior Notes, New Unsecured Cash Flow Notes and
New Common Stock under Sections 12(b) of the Securities Exchange
Act of 1934, as amended, within the period prescribed by
applicable law or regulations of the Securities and Exchange
Commission, and shall provide to all holders of New Senior Notes,
New Cash Flow Notes, and New Common Stock all reports required
under that Act.
8.11 Discharge. As of the Effective Date, the Debtor
shall be discharged from any debt that arose before the date of
the Confirmation Order, and any debt of a kind specified in
Bankruptcy Code Sections 502(g), 502(h), and 502(i), other than
as provided elsewhere herein, whether or not:
(a) a proof of claim based upon such
debt is filed or deemed filed under
Section 501 of the Bankruptcy Code;
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(b) a Claim or Shareholder Interest
based upon such debt is allowed
under Section 502 of the Bankruptcy
Code; or
(c) the holder of a Claim or
Shareholder Interest based upon
such debt has accepted the Plan.
8.12 Cancellation of Indentures'and Release of Trustees
8.12.1 Public Senior Subordinated Notes
(a) Cancellation of Public Senior Subordinated
Note Indenture. On the Effective Date, the Public Senior
Subordinated Note Indenture shall, except as provided in Section
5.6.2 and elsewhere in the Plan, be deemed cancelled, terminated
and of no further force or effect. Notwithstanding the
foregoing, such cancellation of the Public Senior Subordinated
Note Indenture shall not impair the rights of holders of the
Public Senior Subordinated Notes to receive distributions on
account of such claims pursuant to the Plan, nor shall such
cancellation impair the rights and duties under the Public Senior
Subordinated Notes as between U.S. Trust and the beneficiaries of
the trust created thereby, or as between U.S. Trust and the
Company, as set forth in the Public Senior Subordinated Note
Indenture, including, inter alis, the rights of U.S. Trust to
compensation and indemnity by the Company and to enforce its lien
pursuant to the Public Senior Subordinated Note Indenture. The
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•
•
Public Senior Subordinated Notes shall not be cancelled other
than pursuant to Section 5.6.2 of this Plan and, until such
cancellation, such debentures shall be evidence of the
entitlement of the holder thereof to receive distributions of
property from the Company pursuant to the Plan.
Under the Public Senior Subordinated Note Indenture,
U.S. Trust is entitled to apply, on a priority basis, a portion
of the distributions it receives on behalf of its debenture
holders under the Plan to its compensation and its costs,
expenses and disbursements until its compensation and such
expense reimbursement claims are satisfied in full. Furthermore,
as security for such compensation and such expense
reimbursements, U.S. Trust has a lien for this purpose granted to
the indenture trustee under the Public Senior Subordinated Note
Indenture. Consequently, amounts received by holders of the
Senior Subordinated Notes issued pursuant to the Public Senior
Subordinated Note Indenture may be less than the gross
distributions actually provided for under the Plan after payment
of such compensation and such expense reimbursement claims.
(b) Termination of U.S. Trust's Duties and
Release of U.S. Trust. Subsequent to the performance of U.S.
Trust required under the provisions of this Plan and Confirmation
Order and under the terms of the Public Senior Subordinated Note
Indenture, U.S. Trust and its successors and assigns shall be
- 81 -
relieved of all obligations associated with the Senior
Subordinated Note Indenture.
8.12.2 Junior Subordinated Notes
(a) Cancellation of Junior Subordinated Debenture
Indenture. On the Effective Date, the Junior Subordinated
Debenture Indenture shall, except as provided in Section 5.6.3
and other sections of the Plan, be deemed cancelled, terminated
and of no further force or effect. Notwithstanding the
foregoing, such cancellation of the Junior Subordinated Debenture
Indenture shall not impair the rights of holders of the Junior
Subordinated Debentures to receive distributions on account of
such claims pursuant to the Plan, nor shall such cancellation
impair the rights and duties under the Junior Subordinated
Debenture Indenture as between Bankers Trust, and the
beneficiaries of the trust created thereby, or as between Bankers
Trust and the Debtor, as set forth in the Junior Subordinated
Debenture Indenture, including, inter alia, the rights of Bankers
Trust to compensation and indemnity by the Debtor and to enforce
its lien pursuant to the Junior Subordinated Debenture Indenture.
The Junior Subordinated Debentures shall not be cancelled other
than pursuant to Section 5.6.3 of this Plan and, until such
cancellation, such debentures shall be evidence of the
entitlement of the holder thereof to receive distributions of
property from the Debtor pursuant to the Plan.
- 82 -
•
•
Under the Junior Subordinated Debenture Indenture,
Bankers Trust is entitled to apply, on a priority basis, a
portion of the distributions it receives on behalf of its
debenture holders under the Plan to its compensation and its
costs, expenses and disbursements until its compensation and such
expense reimbursement claims are satisfied in full. Furthermore,
as security for such compensation and such expense
reimbursements, Bankers Trust has a lien for this purpose granted
to the indenture trustee under the Junior Subordinated Debenture
Indenture. Consequently, amounts received by holders of the
Junior Subordinated Debentures issued pursuant to the Junior
Subordinated Debenture Indenture may be less than the gross
distributions actually provided for under the Plan after payment
of such compensation and such expense reimbursement claims.
(b) Termination of Bankers Trust's Duties and
Releases of Bankers Trust. Subsequent to the performance of
Bankers Trust required under the provisions of this Plan and
Confirmation Order and under the terms of the Junior Subordinated
Debenture Indenture, Bankers Trust, and its successors and
assigns shall be relieved of all obligations associated with the
Junior Subordinated Debenture Indenture.
ARTICLE IX
CONDITIONS PRECEDENT TO EFFECTIVENESS OF PLAN
The Effective Date shall not occur until all of the
following conditions have been satisfied:
- 83 -
•
(1) The entry of the Confirmation Order by the
Bankruptcy Court and all other necessary orders of any court
having jurisdiction and expiration of the appeal period with
respect to the Confirmation Order and with respect to all other
such necessary orders without the filing of a notice of appeal of
any such order; provided that, if an appeal of the Confirmation
Order or any other such order is filed but no stay is granted in
connection with the appeal, the Debtor and the Creditors'
Committee may elect to permit the Effective Date to occur
notwithstanding the pendency of the appeal;
(2) The execution of loan agreements and other
documentation converting or refinancing the DIP Financing on the
terms set forth in Section 3.1;
(3) The execution of loan agreements evidencing the
New Revolving Credit Facility pursuant to Section 8.1;
(4) The granting of any necessary tax rulings by the
Internal Revenue Service unless the Debtor and the Creditors'
Committee jointly determine in writing to waive such condition as
to any such ruling request;
(5) Entry of Final Orders in the estimation
proceedings described in Section 8.2 of this Plan, unless the
Debtor and the Creditors' Committee jointly determine in writing
to waive such condition as to any Claims subject to such
estimation proceedings; and
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•
•
(6) Inclusion in the Confirmation Order of an
injunctive provision staying, restraining, and enjoining all
individuals or entities, including governmental units, from
commencing, enforcing, perfecting, or setting -off any claim,
judgment, or interest against Debtor or any property thereof, or
any of its transferees, or against the Reorganized Company, the
Estate Administrator, the Disbursing Agent or the Disbursement
Account, for the purpose of, directly or indirectly, collecting,
recovering, or receiving payment of, on, or with respect to, any
Claim or Shareholder Interest.
ARTICLE X
RETENTION OF JURISDICTION
After the Effective Date, the Reorganized Company and
the Disbursing Agent will be free to perform all functions
assigned to them under this Plan without approval of the
Bankruptcy Court, except as specifically provided herein;
provided, however, that the Bankruptcy Court will continue to
retain jurisdiction over this case with respect to the following
matters:
Interests;
(1) All objections to the allowance of Claims and
(2) All matters to be determined by the Bankruptcy
Court in accordance with Section 3.2.1;
(3) All applications for allowance of compensation and
reimbursement of out-of-pocket expenses of the Reorganized
- 85 -
Company's bankruptcy counsel (if any), the Creditors' Committee,
the members of the Creditors' Committee, and any professionals
retained by the Creditors' Committee, to the extent that such
compensation and out-of-pocket expenses relate to services
performed after the Effective Date; provided, however, that
eighty-five percent of all such obligations shall be paid by the
Reorganized Company on a current basis;
(4) All controversies and disputes arising under or in
connection with the Plan;
(5) Any applications or adversary proceedings or
contested matters, including proceedings then pending or
thereafter brought to recover or avoid preferences or fraudulent
conveyances;
(6) All Claims arising from the rejection of any
executory contract or lease;
(7) The enforcement of the provisions of the Plan;
(8) Any application to modify the Plan in accordance
with Bankruptcy Code Section 1127, or to correct any defect, cure
any omission, or reconcile any inconsistency in the Plan,
Disclosure Statement, or Confirmation Order as may be necessary
to carry out the purposes of the Plan;
(9) All claims against officers and directors of the
Debtor arising before the Effective Date; and
(10) Such other matters as may be provided for in the
Confirmation Order.
- 86 -
s
ARTICLE XI
MISCELLANEOUS
11.1 Continued Role for Creditors' Committee. The
Creditors' Committee shall remain in existence in order to
oversee the Estate Administration and represent the interests of
the creditors of the Debtor in matters and proceedings in regard
to the Estate Administration under Section 8.9 of the Plan. The
Creditors' Committee and the retention of any professionals or
other agents retained thereby will terminate upon the entry of a
Final order closing this Chapter 11 case.
11.2 Limitation of Liability. The Debtor and the
Creditors' Committee and any of their members, directors,
officers and agents, including without limitation their counsel,
accountants, consultants or employees, shall not be liable to the
Debtor, any holder of a Claim against or Shareholder Interest in
the Debtor, or any other entity for any action taken or omitted
to be taken in connection with their duties in this Chapter 11
case or under the Plan, except that such liability may be imposed
for willful misconduct. The Bankruptcy Court shall have
exclusive jurisdiction to resolve any questions concerning any
such liability.
11.3 Amendments of the Plan. The Debtor and the
Creditors' Committee reserve all rights to amend, modify, alter
or withdraw this Plan before the Confirmation Date and to amend,
- 87 -
modify or alter this Plan after the Confirmation Date in
accordance with the Bankruptcy Code.
11.4 Headings. Article, Section and subsection
headings used herein are for convenience only and shall not
affect the interpretation or construction of any provision of
this Plan.
- 88 -
•
WILMER, CUTLER & PICKERING
Lead Counsel for the Debtor
2445 M Street, N.W.
Washington, D.C. 20037-1420
Telee• 202-6 6000
By:7A
A
William J. Perlstein
Thomas W. White
Sarah H. Korn
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
Attorneys for the Debtor
1221 Brick 11 Avenue
Miami, F rida 33131
Te ne: 30 579-0500
�
By:.
Mark D. Bloom
•
Respectfully Submitted,
GENERAL DEVELOPMENT
By: H '
Larry lWtherlf 6rd;
esidenand Chiefs
v Office
OFFICIAL UNSECURED CREDITORS'
COMMITTEE
By: Z4 _a��
Gera . But rly,
Chai an
MAGUIRE, VOORHIS & WELLS, P.A.
Counsel to the Creditors' Committee
Two South Orange Plaza
P.O. Box 633
Orlando, Florida 32802
Telephone: 407-843-4421
// b/�ff� , \I-
Michael
"
Michael G. -Williamson
Samuel J. Zusmann, Jr.
Dated: May 31, 1991
N
ve
Exhibits
Exhibit A-1 -- Form of Unsecured Senior Note
Exhibit A-2 -- Form of Unsecured Cash Flow Note
Exhibit B -- Distribution Formula
Exhibit C -- Identification and Treatment of Secured Claims
Pursuant to Class 2.5
- 90 -
EXHIBIT A-1
PROMISSORY NOTE
((Reorganized Company) 12% Unsecured Senior Note)
Due December 15, 1996
, 1991
Miami, Florida
FOR VALUE RECEIVED, the undersigned, (Reorganized
Company], a corporation organized and existing under the laws of
the State of Delaware (the "Company"), hereby promises to pay to
the order of
of
Dollars ($
(the "Holder"), the principal amount
) on December 15, 1996,
and to pay interest thereon at the rate of twelve percent (12%)
per annum.
1. The Plan and the Notes. This Note is issued
pursuant to the Joint Plan of Reorganization of General
Development Corporation, dated
, 1991 (the "Plan"),
filed with the United States Bankruptcy Court for the Southern
District of Florida in the proceeding captioned In Re General
Development Corporation et al., No. 90-12231-BKC-AJC, and
confirmed by order entered
, 1991. This Note is one of
a duly authorized issue of promissory notes referred to in the
Plan and designated as the Company's 12% Unsecured Senior Notes
due December 15, 1996 (the "Unsecured Senior Notes"), limited in
aggregate principal amount, together with the Company's
0
EXHIBIT A-1
Adjustable Rate Secured Senior Notes (the "Secured Senior
Notes"), to $100,000,000, issued, and to be issued, under an
indenture dated , 1991 (the "Unsecured Senior Note
Indenture"), between the Company and as trustee
(the "Trustee," which term includes any successor trustee), to
which the Unsecured Senior Note Indenture and all indentures
supplemental thereto reference is hereby made for a description
of the respective rights thereunder of the Company, the Trustee
and the Holders of the Notes, and the terms upon which the Notes
are, and are to be, authenticated and delivered. All capitalized
terms used herein and not otherwise defined shall have the
meanings specified in the Plan or the Unsecured Senior Note
Indenture.
2. Manner of Payment. All payments on this Note
shall be made to the Holder at the Holder's address as reflected
on the Note Register of the Company. Payment will be made by
check in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and
private debts.
3. Unsecured Senior Note Payments and Maturity.
Interest shall accrue on the outstanding principal amount of this
Note at the rate of twelve percent (12%) per annum (calculated on
- 2 -
•
•
EXHIBIT A-1
the basis of a 365 -day year, actual days elapsed). On each
August 1 or February 1 following the last day of a Payment Period
(as hereinafter defined) ("Payment Date"), or if such date is not
a business day (defined as a day in which depository institutions
located in the State of Florida are open for business), the next
business day thereafter, the Holder shall be paid the accrued
interest for the preceding Payment Period. Payment Period means
(i) the period commencing on the Effective Date of the Plan and
ending on either the next June 30 or the next December 31,
whichever is at least four (4) months after the Effective Date;
and (ii) each six-month period thereafter ending June 30 or
December 31. All unpaid principal and accrued interest on this
Note shall be due and payable in full on or before December 15,
1996.
4. Mandatory Prepayment. The principal balance of
this Note is subject to mandatory prepayment on each Payment Date
in an amount equal to the Holder's pro rata share of Available
Cash, as defined in the Plan, remaining after the following
payments:
(a) Payments of accrued and unpaid interest on
the outstanding principal balances of the Company's Adjustable
- 3 -
0
0
EXHIBIT A-1
Rate Secured Cash Flow Notes and the Company's 13% Unsecured Cash
Flow Notes; and
(b) Prepayment of principal on the Term Loan
until the Term Loan is repaid in full.
For purposes of this paragraph, a Holder's "pro rata
share of Available Cash" shall be calculated on the basis of the
ratio of the outstanding principal balance of this Note on a
Payment Date to the aggregate outstanding principal balance of
all the Secured Senior Notes and the Unsecured Senior Notes on
such Payment Date. All such prepayments shall be made without
premium or penalty. In the event of any such prepayment, the
principal amount of each of the Notes shall be reduced by the
amount of such prepayment.
5. Events of Default. The following events shall be
considered "Events of Default" and the Holder shall have the
following rights and remedies:
(a) In the event the Company shall fail to make
any payment hereunder as and when the same is due by the terms of
this Note and such failure shall continue for a period of ten
(10) days after the date on which such payment is due, then, and
- 4 -
•
•
EXHIBIT A-1
in any such event, the Trustee or the Holders of not less than
twenty-five percent (25%) of the aggregate principal amount of
the Unsecured Senior Notes outstanding may, by notice in writing
to the Company (and to the Trustee if given by Holders), declare
all outstanding Unsecured Senior Notes immediately due and
payable in full, provided, however, that the Holders of a
majority of the principal amount of the Unsecured Senior Notes
outstanding may rescind and annul such declaration in accordance
with the provisions of the Unsecured Senior Note Indenture.
(b) If the Company shall fail to make any payment
under the Secured Senior Notes as and when the same is due by the
terms of such Notes and an Event of Default is declared pursuant
to the terms of such Notes, then the entire unpaid principal
amount of this Note shall become immediately due and payable in
full.
(c) If the Company shall make an assignment for
the benefit of creditors, or apply for or consent to the
appointment of any receiver, trustee or similar officer for it or
for any substantial part of its property; or such trustee,
receiver or similar officer shall be appointed without the
application or consent of the Company; or the Company shall
institute (by petition, application, answer, consent or
- 5 -
r:
•
EXHIBIT A-1
otherwise) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it under the laws of any
jurisdiction; or any such proceeding shall be instituted (by
petition, application or otherwise) against the Company and shall
remain undismissed for a period of sixty (60) days, the entire
unpaid principal amount of this Note shall become immediately due
and payable in full.
6. Transfer. As provided in the Unsecured Senior
Note Indenture and subject to certain limitations therein set
forth, this Note is transferable by the registered Holder hereof
on the Note Register of the Company, upon surrender of the
original of this Note for transfer to the Trustee at the office
designated by the Company, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the
Company duly executed by the registered Holder or his or her
attorney duly authorized in writing, and thereupon one or more
new registered Unsecured Senior Notes, of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Company, or any agent thereof, may treat the person
in whose name this Note is registered as the absolute owner for
- 6 -
EXHIBIT A-1
all purposes whether or not this Note is in default, and the
Company, or any agent thereof, shall not be affected by notice to
the contrary.
The Unsecured Senior Notes are issuable as registered
Notes in denominations of $100 and any multiple thereof.
Unless the certificate of authentication hereon has
been executed by the Trustee by the manual signature of one of
its authorized officers, this Note shall not be entitled to any
benefit under the Unsecured Senior Note Indenture, or be valid,
or otherwise obligatory for any purpose.
7. Notices. All notices, requests, demands, and
other communications provided for hereunder shall be in writing
and shall be sent in accordance with the provisions of the
Unsecured Senior Note Indenture.
8. Attorneys Fees. The Company agrees to pay all
costs and expenses incurred by the Holder in any action to
enforce the provisions of this Note, or to collect sums due
hereunder, including, but not limited to, reasonable attorneys
fees and costs.
- 7 -
•
EXHIBIT A-1
9. Miscellaneous. Any modification or waiver of any
provision of this Note or the rights and obligations of the
Company and the rights and obligations of the Holders shall be
effected only in accordance with the terms of the Unsecured
Senior Note Indenture. Any such consent or waiver by a Holder of
this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued on
the transfer of this Note or in exchange therefor or in lieu
thereof whether or not notation of such consent or waiver is made
upon this Note.
Any provision of this Note that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
All covenants and agreements contained herein or made
in writing in connection herewith shall survive the execution and
delivery hereof and shall continue in full force and effect until
all sums due and to become due hereunder from the Company shall
have been paid in full and the same shall bind and inure to the
- 8 -
•
EXHIBIT A-1
benefit of the respective successors and assigns of the parties
hereto.
No reference herein to the Unsecured Senior Note
Indenture and no provision of this Note or of the Unsecured
Senior Note Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and
rate, and in the coin and currency, herein prescribed.
This Note and all rights and duties hereunder,
including matters of construction, validity and performance,
shall be governed by the laws of the State of New York.
Any action or proceeding to enforce payment of this
Note or to interpret any provision hereof shall be brought in the
United States Bankruptcy Court for the Southern District of
Florida.
IN WITNESS WHEREOF, the Company has duly executed this
Note on the date first above written.
[REORGANIZED COMPANY]
EXHIBIT A-1
[Seal] By:
President
ATTESTED:
By:
Secretary
- 10 -
EXHIBIT A-2
PROMISSORY NOTE
((Reorganized Company] 13% Unsecured Cash Flow Note)
Due December 15, 1998
1991
Miami, Florida
FOR VALUE RECEIVED, the undersigned, (Reorganized
Company], a corporation organized and existing under the laws of
the State of Delaware (the "Company"), hereby promises to pay to
the order of
(the "Holder"), the principal amount
Dollars ($ ) on December 15, 1998,
and to pay interest thereon at the rate of thirteen percent (13%)
per annum to the extent there is Available Cash (as hereinafter
defined).
1. The Plan and the Notes. This Note is issued
pursuant to the Joint Plan of Reorganization of General
Development Corporation, dated
, 1991 (the "Plan"),
filed with the United States Bankruptcy Court for the Southern
District of Florida in the proceeding captioned In Re General
Development Corporation et al., No. 90-12231-BKC-AJC, and
confirmed by order entered
, 1991. This Note is one of
a duly authorized issue of promissory notes referred to in the
Plan and designated as the Company's 13% Unsecured Cash Flow
Notes due December 15, 1998 (the "Unsecured Cash Flow Notes"),
EXHIBIT A-2
limited in aggregate principal amount, together with the
Company's Adjustable Rate Secured Cash Flow Notes (the "Secured
Cash Flow Notes"), to $100,000,000, issued, and to be issued,
under an indenture dated
1991 (the "Unsecured Cash
Flow Note Indenture"), between the Company and
as
trustee (the "Trustee," which term includes any successor
trustee), to which the Unsecured Cash Flow Note Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the respective rights thereunder of the Company,
the Trustee and the Holders of the Notes, and the terms upon
which the Notes are, and are to be, authenticated and delivered.
All capitalized terms used herein and not otherwise defined shall
have the meanings specified in the Plan'or the Unsecured Cash
Flow Note Indenture.
2. Manner of Payment. All payments on this Note
shall be made to the Holder at the Holders address as reflected
on the Note Register of the Company. Payment will be made by
check.in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and
private debts.
3. Unsecured Cash Flow Payments and Maturit .
Interest shall accrue on the outstanding principal amount of this
- 2 -
•
EXHIBIT A-2
Note at the rate of thirteen percent (13%) per annum (calculated
on the basis of a 365 -day year, actual days elapsed). On each
August 1 or February 1 following the last day of a Payment Period
(as hereinafter defined) ("Payment Date"), or if such date is not
a business day (defined as a day in which depository institutions
located in the State of Florida are open for business), the next
business day thereafter, interest shall be paid to the Holder in
an amount equal to the Available Cash, as defined in the Plan, up
to the amount of interest accrued and not paid through the end of
the preceding Payment Period. Payment Period means (i) the
period commencing on the Effective Date of the Plan and ending on
either the next June 30 or the next December 31, whichever is at
least four (4) months after the Effective Date; and (ii) each
six-month period thereafter ending June 30 or December 31. For
purposes of this paragraph, the Holder's "pro rata portion of the
Available Cash" shall be calculated on the basis of the ratio of
all accrued and unpaid interest on this Note on the Payment Date
to all accrued and unpaid interest on all the Secured Cash Flow
Notes and the Unsecured Cash Flow Notes on the Payment Date.
Payments under this Note shall be applied to accrued and unpaid
interest in the order such interest accrued, until all accrued
and unpaid interest on this Note is paid. All unpaid principal
and accrued and unpaid interest on this Note shall be due and
payable in full on or before December 15, 1998.
- 3 -
EXHIBIT A-2
4. Mandatory Prepayment. The principal balance of
this Note is subject to mandatory prepayment on each Payment Date
in an amount equal to the Holder's pro rata share of Available
Cash remaining after the following payments:
(a) Payments of accrued and unpaid interest on
the outstanding principal balances of the Secured Cash Flow Notes
and the Unsecured Cash Flow Notes;
(b) Prepayment of principal of the Term Loan
until the Term Loan is repaid in full; and
(c) Prepayments of principal outstanding under
the Company's Adjustable Rate Secured Senior Notes and the
Company's 12% Unsecured Senior Notes until such Notes are repaid
in full.
For purposes of this paragraph, a Holder's "pro rata
share of Available Cash" shall be calculated on the basis of the
ratio of the outstanding principal balance of this Note on a
Payment Date to the aggregate outstanding principal balance of
all the Secured Cash Flow Notes and the Unsecured Cash Flow Notes
on such Payment Date. All such prepayments shall be made without
premium or penalty. In the event of any such prepayment, the
- 4 -
EXHIBITA-2
Principal amount of each of the Notes shall be reduced b
amount of such prepayment.Y the
5• Events of Default. The following events shall be
considered "Events of Default#, and the Holder shall have the
following rights and remedies:
(a) In the event the Company shall fail to make
any payment hereunder as and when the same is due by the terms of
this Note and such failure shall continue for a period of ten
(10) days after the date on which such payment is due, then a
in any such event the Trustee or � and
' the Holders of not less than
twenty-five percent (25%) of the aggregate principal amount of
the Unsecured Cash Flow Notes outstanding may, by notice in
writing to the Company (and to the Trustee if given by Holders),
declare all outstanding Unsecured Cash Flow Notes immediately due
and payable in full, provided, however, that the Holders of a
majority of the principal amount of the Unsecured Cash Flow Notes
outstanding may rescind and annul such declaration in accordance
with the provisions of the Unsecured Cash Flow Note Indenture.
(b) If the Company shall fail to make any payment
under the Secured Cash Flow Notes as and when the same is due by
the terms of such Notes and an Event of Default is declared
- 5 -
EXHIBIT A-2
pursuant to the terms of such Notes, then the entire unpaid
principal amount of this Note shall become immediately due and
payable in full.
(c) If the Company shall make an assignment for
the benefit of creditors, or apply for or consent to the
appointment of any receiver, trustee or similar officer for it or
for any substantial part of its property; or such trustee,
receiver or similar officer shall be appointed without the
application or consent of the Company; or the Company shall
institute (by petition, application, answer, consent or
otherwise) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it under the laws of any
jurisdiction; or any such proceeding shall be instituted (by
petition, application or otherwise) against the Company and shall
remain undismissed for a period of sixty (60) days, the entire
unpaid principal amount of this Note shall become immediately due
and payable in full.
6. Transfer. As provided in the Unsecured Cash Flow
Note Indenture and subject to certain limitations therein set
forth, this Note is transferable by the registered Holder hereof
on the Note Register of the Company, upon surrender of the
- 6 -
•
EXHIBIT A-2
original of this Note for transfer to the Trustee at the office
designated by the Company, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the
Company duly executed by the registered Holder or his or her
attorney duly authorized in writing, and thereupon one or more
new registered Unsecured Cash Flow Notes, of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Company, or any agent thereof, may treat the person
in whose name this Note is registered as the absolute owner for
all purposes whether or not this Note is in default, and the
Company, or any agent thereof, shall not be affected by notice to
the contrary.
The Unsecured Cash Flow Notes are issuable as
registered Notes in denominations of $100 and any multiple
thereof.
Unless the certificate of authentication hereon has
been executed by the Trustee by the manual signature of one of
its authorized officers, this Note shall not be entitled to any
benefit under the Unsecured Cash Flow Note Indenture, or be
valid, or otherwise obligatory for any purpose.
- 7 -
EXHIBIT A-2
7. Notices. All notices, requests, demands, and
other communications provided for hereunder shall be in writing
and shall be sent in accordance with the provisions of the
Unsecured Cash Flow Note Indenture.
8. Attorneys Fees. The Company agrees to pay all
costs and expenses incurred by the Holder in any action to
enforce the provisions of this Note, or to collect sums due
hereunder, including, but not limited to, reasonable attorneys
fees and costs.
9. Miscellaneous. Any modification or waiver of any
provision of this Note or the rights and obligations of the
Company and the rights and obligations of the Holders shall be
effected only in accordance with the terms of the Unsecured Cash
Flow Note Indenture. Any such consent or waiver by a Holder of
this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued on
the transfer of this Note or in exchange therefor or in lieu
thereof whether or not notation of such consent or waiver is made
upon this Note.
Any provision of this Note that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
- 8 -
•
EXHIBIT A-2
be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
All covenants and agreements contained herein or made
in writing in connection herewith shall survive the execution and
delivery hereof and shall continue in full force and effect until
all sums due and to become due hereunder from the Company shall
have been paid in full and the same shall bind and inure to the
benefit of the respective successors and assigns of the parties
hereto.
No reference herein to the Unsecured Cash Flow Note
Indenture and no provision of this Note or of the Unsecured Cash
Flow Note Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and
rate, and in the coin and currency, herein prescribed.
This Note and all rights and duties hereunder,
including matters of construction, validity and performance,
shall be governed by the laws of the State of New York.
EXHIBIT A-2
Any action or proceeding to enforce payment of this
Note or to interpret any provision hereof shall be brought in the
United States Bankruptcy Court for the Southern District of
Florida.
IN WITNESS WHEREOF, the Company has duly executed this
Note on the date first above written.
[REORGANIZED COMPANY]
[Seal] By:
President
ATTESTED:
By:
Secretary
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a 0 0
EXHIBIT B
Allocation of Securities Among Unsecured Claims
This Exhibit B to the Joint Plan of Reorganization of General Development
Corporation sets out the method for implementing the allocation of the New Senior
Notes, the New Cash Flow Notes and the New Common Stock among the Unsecured
Claims Classes in accordance with Sections 5.4 to 5.9 'of the Plan. In the event of
any inconsistency between this Exhibit B and the Plan, the terms of this Exhibit shall
control. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Plan.
The New Senior Notes, the New Cash Flow Notes and the New Common
Stock (together the "Securities," and each of which may be separately referred to as
a "Security") shall each be allocated pursuant to the following steps:
STEP 1
For each holder of an Allowed Claim- in the Unsecured Claims Classes,
perform the following calculations for each Security:
New Senior Notes:
New Cash Flow Notes:
New Common Stock:
PAS = 100,000,000 * IAR
PAS = 100,000,000 * IAR
NCS = 9,750,000 * IAR
where:
PAS = the principal amount of New Senior Notes or New Cash
Flow Notes;
NCS = the number of shares of New Common Stock ; and
IAR = the Initial Allocation Ratio (as defined in the Plan).
The principal amounts (PAS) of New Senior Notes and New Cash Flow
Notes allocated to holders of Allo wed Claims in Classes 10, 11 and 12 in STEP 1 shall
constitute the INTERIM CALCULATION AMOUNTS for the New Senior Notes and the
New Cash Flow Notes for each such Class.
STEP 2
The amounts of each Security determined in STEP 1 for holders of
Allowed Claims in Class 9 ("Class 9 Calculation") shall be reallocated to holders of
Allowed Claims in Classes 4, 5, 6, 7 and 8 (the "S2 Classes"):
A. As to each Security, calculate a "beginning amount" for each S2 Class:
BA = C9 * S2DFR
where:
BA = the beginning amount of an S2 Class;
C9 = the Class 9 Calculation with respect to each Security (i.e.,
the aggregate PAS or NCS); and
S2DFR = the S2 Deficiency Ratio.
For purposes of the calculation of STEP 2(A):
(i) the S2 Deficiency Ratio for any S2 Class means the ratio of the S2
Deficiency of that S2 Class to the sum of S2 Deficiencies of all S2
Classes; and
(ii) the S2 Deficiency of an S2 Class equals the difference between (a)
the total Allowed Claims for that S2 Class and (b) the sum of:
(1) the aggregate PAS of New Senior Notes calculated for that S2
Class pursuant to STEP 1;
(2) the aggregate PAS of New Cash Flow Notes calculated for
that S2 Class pursuant to STEP 1; and
(3) the aggregate NCS of New Common -Stock calculated for that
S2 Class pursuant to STEP 1 multiplied by (amount that will be
assumed for purposes of this Exhibit, to be determined prior to the
Confirmation Date) per share.
B. Adjust the amounts determined pursuant to STEP 2(A):
For Class 5: D9(c) = BA * .60
For Class 6: D9(c) = BA * .30
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•
For Class 4, 7 or 8: D9(c) = BA + (MS2DFR * RST)
where:
D9(c) = the amount of the Class 9 Calculation allocable to a
particular S2 Class;
BA = the beginning amount for the particular S2 Class calculated
in STEP 2(A);
MS2DFR = the Modified S2 Deficiency Ratio for the particular S2
Class; and
RST = the difference between: (i) the sum of the BAs for S2
Classes 5 and 6 and (ii) the sum of the D9(c)s for S2 Classes 5
and 6.
For purposes of the calculation of STEP 2(B):
(i) the Modified S2 Deficiency Ratio for any S2 Class means the ratio of
the Modified S2 Deficiency of an S2 Class to the sum of the Modified S2
Deficiencies of S2 Classes 4, 7 and 8; and
(ii) the Modified S2 Deficiency of an S2 Class equals the difference
between (a) the total Allowed Claims- for the S2 Class and (b) the sum
of:
(1) the aggregate PAS of New Senior Notes calculated for that S2
Class pursuant to STEP 1;
(2) the aggregate PAS of New Cash Flow Notes calculated for
that S2 Class pursuant to STEP 1;
(3) the aggregate NCS of New Common Stock calculated for that
S2 Class pursuant to STEP 1 multiplied- by (amount that will be
assumed for purposes of this Exhibit, to be determined prior to the
Confirmation Date) per share; and
(4) the beginning amount of that S2 Class as calculated in STEP
2(A).
ME
•
STEP 3
The amounts of each Security determined in STEPS 1 and 2 for holders
of Allowed Claims in Class 8 ("Class 8 Calculation") shall be reallocated to holders of
Allowed Claims in Classes 4, 5 and 6 (the "S3 Classes"):
Class: A. As to each Security, calculate a "new beginning amount" for each S3
NBA = C8 * S3DFR
where:
NBA = the new beginning amount of an S3 Class;
C8 = the Class 8 Calculation with respect to each Security (i.e.,
the aggregate PAS or NCS plus the D9(c) calculated in STEP
2(B)); and
S3DFR = the S3 Deficiency Ratio.
For purposes of the calculation of STEP 3(A):
(i) the S3 Deficiency Ratio for any S3 Class means the ratio of the S3
Deficiency of that S3 Class to the sum of S3 Deficiencies of all S3
Classes;
(ii) the S3 Deficiency of an S3 Class, subject to adjustment in clause (iii),
equals the difference between (a) the total Allowed Claims for that S3
Class and (b) the sum of:
(1) the aggregate PAS and D9(c) of New Senior Notes calculated
for that S3 Class pursuant to STEPS 1 and 2;
(2) the aggregate PAS and D9(c) of New Cash Flow Notes
calculated for that S3 Class pursuant to STEPS 1 and 2; and
(3) the aggregate NCS and D9(c) of New Common Stock
calculated for that S3 Class pursuant to STEPS 1 and 2 multiplied
by (amount that will be assumed for purposes of this Exhibit, to
be determined prior to the Confirmation Date) per share;
(iii) solely for purposes of calculating the S3 Deficiency Ratio, the S3
Deficiency of S3 Class 4 calculated in clause 00 shall be adjusted by an
amount calculated as follows:
dcr = C7 * (AC7/(AC7 +AC8))
where:
dcr = the amount by which the S3 Deficiency of S3 Class 4 shall
be decreased;
C7 = the sum of:
(i) the aggregate PAS and D9(c) of New Senior Notes and
of New Cash Flow Notes calculated for Class 7 pursuant to
STEPS 1 and 2; and
(ii) the aggregate NCS and D9(c) of New Common Stock
calculated for Class 7 pursuant to STEPS 1 and 2 multiplied
by (amount that will be assumed for purposes of this
Exhibit, to be determined prior to the Confirmation Date)
per share;
AC7 = total Class 7 Allowed Claims; and
AC8 = total Class 8 Allowed Claims.
B. Adjust the amounts determined pursuant to STEP 3(A):
For Class 5: D8(c) = NBA * .60
For Class 6: D8(c) = NBA * .30
For Class 4: D8(c) = NBA + RST
where:
D8(c) = the amount of the Class 8 Calculation allocable to a
particular S3 Class;
NBA = the new beginning amount for the particular S3 Class
calculated in STEP 3(A); and
RST = the difference between: (i) the sum of the NBAs for S3
Classes 5 and 6 and (ii) the sum of the D8(c)s for S3 Classes 5
and 6.
- 5 -
The principal amounts of New Senior Notes and New Cash Flow Notes
allocated to holders of Allowed Claims in Classes 5 and 6 in STEPS 1 through 3 shall
constitute the INTERIM CALCULATIONAMOUNTS for the New Senior Notes and the
New Cash Flow Notes for each such Class.
STEP 4
The amounts of each Security determined in STEPS 1 and 2 for holders
of Allowed Claims in Class 7 shall be reallocated to holders of Allowed Claims in Class
4.
The principal amounts of New Senior Notes and New Cash Flow Notes
allocated to holders of Allowed Claims in Class 4 in STEPS 1 through 4 shall
constitute the INTERIM CLASS 4 CALCULATIONAMOUNT for the New Senior Notes
and the New Cash Flow Notes.
STEP 5
Notwithstanding the calculations performed in STEPS 1 through 4,
above, from the 9,750,000 shares of New Common Stock to be issued under the
Plan, allocate 1,330,000 shares to holders of Allowed Claims in Classes 7, 8 and 9
as follows:
Class 7 424,000 shares
Class 8 706,000 shares
Class 9 200,000 shares
Total 1,330,000 shares
Allocate the remaining 8,420,000 shares of New Common Stock to be
issued under the Plan to holders of Allowed Claims in Classes 4, 5 and 6 (together the
"Senior Debt Classes," each separately a "Senior Debt Class") -and to holders of
Allowed Claims in Classes 10, 11 and 12 (the "General Unsecured Claim Classes"):
A. Allocate shares to each Senior Debt Class:
SDS = 8,420,000 * (TSD/9,750,000) * (SD/TSD)
where:
SDS = the total number of shares allocated to a particular Senior
Debt Class;
TSD = the total number of shares calculated for all the Senior
Debt Classes in STEPS 1 through 4; and
SD = the total number of shares calculated for the particular
Senior Debt Class in STEPS 1 through 4.
B. Allocate shares to each holder of an Allowed Claim in the General
Unsecured Claim Class:
ICA = 8,420,000 * IAR
where:
ICA = Interim Calculation Amount for New Common Stock for a
holder of an Allowed Claim in a General Unsecured Claim Class;
and
IAR = the Initial Allocation Ratio (as defined in the Plan).
The number of shares of New Common Stock allocated to holders of
A//owed Claims in Classes 4, 5, 6, 10, 11 and 12 in STEP 5 shall constitute the
INTERIM CALCULATION AMOUNT for the New Common Stock for each such Class.
STEP 6
A. Allocate the principal amounts of the New Senior Notes and New Cash
Flow Notes to holders of Allowed Claims in Classes 5, 6, 10, 11 and 12 (the
"Classes"):
D = NNDA * DR
where:
D = the principal amounts of New Senior Notes or New Cash
Flow Notes to be allocated to holders of Allowed Claims in a
particular Class;
NNDA = the New Note Distribution Amount for the New Senior
Notes (as defined in the Plan, i.e., $85,000,000 less the Interim
Class 4 Calculation Amount for the New Senior Notes) for that
Class;
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LI
DR = the Distribution Ratio (as defined in the Plan, i.e., the ratio
of (i) the Interim Calculation Amount for the New Senior Notes to
(ii) $100,000,000 less the Interim Class 4 Calculation Amount for
the New Senior Notes) for that Class.
B. Allocate the principal amounts of the New Senior Notes and New Cash
Flow Notes to holders of Allowed Claims in Class 4:
D4 = ICA4 + 15,000,000
where:
D4 = the principal amounts of New Senior Notes or New Cash
Flow Notes to be allocated to holders of Allowed Claims in Class
4; and
ICA4 = the Interim Class 4 Calculation Amount for the New
Senior Notes or the New Cash Flow Notes.
C. Distribute the first (number to be determined prior to the Confirmation
Date) shares of New Common Stock allocated to holders of Allowed Claims in Class
4 to holders of Allowed Claims in Classes 5, 6, 10, 11 and 12:
CSD = (number of shares to be determined) * DR
where:
CSD = the number of shares of New Common Stock to be
distributed to the holders of Allowed Claims in a particular Class;
DR = the Distribution Ratio (as defined in the Plan, i.e., the ratio
of (i) the Interim Calculation Amount for the New Senior Notes to
(ii) 4100,000,000 less the Interim Class 4 Calculation Amount for
the New Senior Notes) for that Class.
WO
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a
Exhibit C
Identification and Treatment of
Secured Claims Pursuant to Class 2.5
StanChart Claim
StanChart Business Credit Secured Claim consists of any
Claim of Stanchart Business Credit, for itself and as agent for
Daiwa Bank Limited, as successor in interest to Lloyds Bank, PLC
and National Bank of Canada (collectively, "StanChart") arising
from the following Agreements between the Company and StanChart:
(a) the Inducement Agreement dated as of June 23, 1986, as amended,
(b) the Stock Pledge Agreement dated as of June 24, 1986 And all
other related documents, as amended ("StanChart Claim"), to the
extent that such Claim is a Secured Claim secured by a security
interest in all the shares of capital stock of General Development
Financial Services, Inc. ("GDFS").
With respect to the StanChart Claim, StanChart shall
retain its security interests in the capital stock of GDFS until
its total allowed StanChart Claim, plus any amounts allowed by
Final Order under Section 506(b) of the Bankruptcy Code in respect
of such claim are satisfied. In the event that StanChart receives
its total Allowed StanChart Claim plus any amounts allowed by Final
Order under Section 506(b) of the Bankruptcy Code in respect of
such Claim, all security interest in the capital stock of GDFS
shall terminate. All other duties and obligations of the Company
to StanChart in respect of the StanChart transaction, shall be
extinguished as of the Effective Date.