Replies to post #2544 on Lehman Brothers Financial SA (LEHNQ)

[JERSEYHAWG]

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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:
In re: : Chapter 11 Case No.
:
LEHMAN BROTHERS HOLDINGS INC., et al., : 08-13555 (JMP)
:
Debtors. : (Jointly Administered)
:
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JOINT SUBSTANTIVELY CONSOLIDATING
CHAPTER 11 PLAN FOR LEHMAN BROTHERS HOLDINGS INC. AND
CERTAIN OF ITS AFFILIATED DEBTORS OTHER THAN MERIT, LLC,
LB SOMERSET LLC AND LB PREFERRED SOMERSET LLC PROPOSED
BY THE AD HOC GROUP OF LEHMAN BROTHERS CREDITORS
WHITE & CASE LLP
1155 Avenue of the Americas
New York, New York 10036-2787
Tel: [phone]
Fax: [phone]
Attorneys for the Ad Hoc Group of
Lehman Brothers Creditors
Dated: New York, New York
December 15, 2010
TABLE OF CONTENTS
PAGE
ARTICLE I. Definitions and Interpretation ...................................................................................1
ARTICLE II. Treatment of Administrative Expense Claims and Priority Tax Claims ..............14
2.1. Administrative Expense Claims.............................................................................14
2.2. Professional Compensation and Reimbursement Claims ......................................14
2.3. Priority Tax Claims................................................................................................15
ARTICLE III. Classification of Claims and Equity Interests ......................................................15
3.1. Introduction............................................................................................................15
3.2. Classification of Claims.........................................................................................15
3.3. Separate Classification on an Entity-by-Entity Basis. ...........................................17
ARTICLE IV. Treatment of Claims Against the Debtors and Equity Interests...........................17
4.1. Class 1 – Priority Non-Tax Claims........................................................................17
4.2. Class 2 – Secured Claims.......................................................................................18
4.3. Class 3 – Senior Unsecured Claims .......................................................................18
4.4. Class 4 – General Unsecured Claims.....................................................................18
4.5. Class 5 – Subordinated Unsecured Claims ............................................................18
4.6. Classes 6A through 6n – Subsidiary Unsecured Claims.......................................19
4.7. Classes 7A through 7n – Consolidated Third-Party Guarantee Claims.................19
4.8. Classes 8A through 8n – Non-Consolidated Third-Party Guarantee Claims ........20
4.9. Class 9 – Non-Consolidated Intercompany Claims ...............................................20
4.10. Class 10 – LBT Intercompany Claims...................................................................21
4.11. Class 11 – LBT Third-Party Guarantee Claims.....................................................21
4.12. Classes 12A through Classes 12n – Designated Non-Debtor Affiliate
Intercompany Claims .............................................................................................21
TABLE OF CONTENTS
(continued)
PAGE
ii
4.13. Classes 13A through 13n – Designated Non-Debtor Affiliate Third-Party
Guarantee Claims...................................................................................................22
4.14. Class 14 – Section 510(b) Claims..........................................................................22
4.15. Class 15 – Equity Interests.....................................................................................22
ARTICLE V. Acceptance or Rejection of the Plan; Effect of Rejection by One or More Classes
of Claims or Equity Interests .................................................................................23
5.1. Classes Entitled to Vote .........................................................................................23
5.2. Class Acceptance Requirement..............................................................................23
5.3. Undivided Voting...................................................................................................23
5.4. Nonconsensual Confirmation.................................................................................23
ARTICLE VI. Substantive Consolidation of the Consolidated Debtors......................................23
6.1. Substantive Consolidation of the Consolidated Debtors .......................................23
6.2. Separate Classification for Settlement Purposes....................................................24
ARTICLE VII. Substantive Consolidation of Certain Designated Non-Debtor Affiliates..........24
7.1. Substantive Consolidation of Certain Designated Non-Debtor Affiliates.............24
7.2. Separate Classification for Settlement Purposes....................................................24
7.3. Identification of Designated Non-Debtor Affiliates ..............................................25
ARTICLE VIII. Substantive Consolidation of LBT....................................................................25
8.1. Substantive Consolidation of LBT.........................................................................25
8.2. Separate Classification for Settlement Purposes....................................................26
ARTICLE IX. Implementation of the Plan ..................................................................................26
9.1. Plan Administrator.................................................................................................26
9.2. Redistribution of Subordinated Unsecured Claims Recoveries.............................27
9.3. Special Provisions Regarding LBT........................................................................28
9.4. Creation and Distribution of New Securities. ........................................................28
TABLE OF CONTENTS
(continued)
PAGE
iii
9.5. Allowance of Non-Consolidated Intercompany Claims ........................................28
9.6. Indenture Trustee, the Creditors’ Committee Members and the Plan Proponents 28
ARTICLE X. Corporate Governance ...........................................................................................29
10.1. Corporate Existence ...............................................................................................29
10.2. Management and Administration on a Consolidated Basis ...................................29
10.3. Board of Directors..................................................................................................29
10.4. Wind-Down............................................................................................................29
10.5. Certificate of Incorporation and By-Laws .............................................................30
10.6. Stock Trading Restrictions.....................................................................................30
ARTICLE XI. Provisions Regarding Distributions Under the Plan ............................................30
11.1. Distributions of Plan Consideration.......................................................................30
11.2. Minimum Distribution and Manner of Payment....................................................30
11.3. Distributions Free and Clear ..................................................................................30
11.4. Delivery of Distributions and Undeliverable Distributions ...................................30
11.5. Withholding and Reporting Requirements ............................................................31
11.6. Time Bar to Cash Payment Rights.........................................................................31
11.7. Setoffs and Recoupment ........................................................................................31
11.8. Net Distributions to Foreign Affiliates ..................................................................32
11.9. Allocation of Distributions ....................................................................................32
11.10. Maximum Distribution...........................................................................................32
ARTICLE XII. Procedures for Treating Disputed Claims...........................................................32
12.1. Objections ..............................................................................................................32
12.2. Third-Party Guarantee Claims in Classes 8A through 8n......................................32
12.3. No Distributions Pending Allowance ....................................................................33
TABLE OF CONTENTS
(continued)
PAGE
iv
12.4. Estimation of Claims..............................................................................................33
12.5. Resolution of Disputed Claims ..............................................................................33
12.6. No Interest..............................................................................................................34
12.7. Disputed Claims Reserve.......................................................................................34
ARTICLE XIII. Treatment of Executory Contracts and Unexpired Leases................................34
13.1. Executory Contracts and Unexpired Leases ..........................................................34
13.2. Approval of Assumption and Rejection of Executory Contracts and Unexpired
Leases.....................................................................................................................34
13.3. Cure of Defaults.....................................................................................................35
13.4. Bar Date for Filing Proofs of Claim Relating to Executory Contracts and
Unexpired Leases Rejected Pursuant to the Plan...................................................35
13.5. Insurance Policies ..................................................................................................35
ARTICLE XIV. Effectiveness of the Plan ...................................................................................35
14.1. Conditions Precedent to the Confirmation of the Plan ..........................................35
14.2. Conditions Precedent to the Effective Date of the Plan.........................................35
14.3. Waiver of Conditions.............................................................................................36
ARTICLE XV. Effects of Confirmation ......................................................................................36
15.1. Vesting of Assets ...................................................................................................36
15.2. Binding Effect........................................................................................................36
15.3. Release and Exculpation......................................................................................36
15.4. Injunction..............................................................................................................37
15.5. Terms of Injunctions or Stays ................................................................................37
15.6. Retention of Litigation Claims and Reservation of Rights....................................37
ARTICLE XVI. Retention of Jurisdiction ...................................................................................38
16.1. Retention of Jurisdiction ........................................................................................38
TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE XVII. Miscellaneous Provisions ................................................................................39
17.1. Dissolution of the Committee ................................................................................39
17.2. Exemption from Transfer Taxes ............................................................................40
17.3. Plan Supplement ....................................................................................................40
17.4. Amendment or Modification of Plan .....................................................................40
17.5. Withdrawal or Revocation of the Plan...................................................................40
17.6. Courts of Competent Jurisdiction ..........................................................................41
17.7. Transactions on Business Days..............................................................................41
17.8. Notices ...................................................................................................................41
17.9. Severability ............................................................................................................41
17.10. Governing Law ......................................................................................................41
17.11. Headings ................................................................................................................42
17.12. Exhibits ..................................................................................................................42
17.13. Successors and Assigns..........................................................................................42
17.14. Special Provisions Regarding Insured Claims.......................................................42
Schedules
Debtors............................................................................................................................Schedule 1
Foreign Administrators ....................................................................................................Schedule 2
Foreign Proceedings.........................................................................................................Schedule 3
Preamble
The Plan Proponents propose the following Plan for resolution of outstanding
Claims against, and Equity Interests in, the Debtors pursuant to the Bankruptcy Code.
Capitalized terms used herein have the meanings ascribed to such terms in Article I of the Plan
or, to the extent not defined therein, as such terms are defined in the Bankruptcy Code. Except
as otherwise indicated herein, the Plan applies to each of the twenty Debtors for which
“exclusivity” has expired, but does not apply to the Excluded Debtors. The Plan Proponents,
however, reserve the right to (i) seek a termination of exclusivity with respect to the Excluded
Debtors and (ii) make applicable this Plan or any other plan of reorganization to the Excluded
Debtors in the future or otherwise to seek to substantively consolidate any or all of the Excluded
Debtors with LBHI by separate contested matter or adversary proceeding.
The Plan is premised on the substantive consolidation, for voting and distribution
purposes, of the Consolidated Debtors’ estates and certain Designated Non-Debtor Affiliates and
the potential settlement of issues relating thereto. To avoid the cost and delay associated with
litigation over the appropriateness of substantive consolidation, Intercompany Claims, asset
ownership disputes and other inter-Debtor and inter-Affiliate entanglements, as a settlement, the
Plan offers certain enhanced treatments to holders of Subsidiary Unsecured Claims and certain
holders of Third-Party Guarantee Claims over those amounts such creditors would otherwise
receive in a purely substantively consolidating plan. Such enhanced treatments, however, are
available only to holders of Claims in Classes which vote to accept the Plan. In the event that a
Class of Subsidiary Unsecured Claims votes to accept the Plan, the relevant Debtor’s estate shall
be deemed substantively consolidated as part of a plan settlement pursuant to sections 1123(a)(5)
and (b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019. In the event that any such Class
for any Debtor fails to accept the Plan, the Plan Proponents intend to seek a determination from
the Bankruptcy Court that the substantive consolidation of such Debtor’s estate is appropriate as
a matter of law and fact. Under either scenario, holders of Claims in any Class that fails to
accept the Plan shall not be entitled to receive the enhanced Distributions otherwise offered to
such Class. The Consolidated Debtors’ assets shall include the assets of the Designated Non-
Debtor Affiliates (which are subject to substantive consolidation under the Plan) solely to the
extent such Designated Non-Debtor Affiliate makes its assets available for Distribution under the
Plan. In the absence of so doing, the Plan provides for other equitable relief with respect to such
other Designated Non-Debtor Affiliates.
The Plan Proponents believe that the Plan represents a fair economic resolution
for all of the Debtors’ claimants and that the Plan will expedite the administration of the Debtors’
Chapter 11 Cases and accelerate recoveries. The Plan enables the avoidance of the potential
costs and extended time that would otherwise be incurred in connection with litigation of the
multifaceted and complex issues among and between each of the Debtors.
[The remainder of this page is intentionally left blank.]
ARTICLE I.
Definitions and Interpretation
Definitions. As used in the Plan, the following terms shall have the respective meanings
specified below:
1.1 Ad Hoc Group of Lehman Brothers Creditors means the informal group of certain
holders of Claims against the Debtors represented by White & Case LLP. A list of the members
of the Ad Hoc Group of Lehman Brothers Creditors as of the date hereof is attached to the
Disclosure Statement as Exhibit 5.
1.2 Administrative Expense Claim means any right to payment constituting a cost or
expense of administration of any of the Chapter 11 Cases under sections 503(b) and 507(a)(2) of
the Bankruptcy Code, including, without limitation, any actual and necessary expenses of
preserving the estates of the Consolidated Debtors, any actual and necessary expenses of
operating the businesses of the Consolidated Debtors, any indebtedness or obligations incurred
or assumed by the Consolidated Debtors in connection with the conduct of their business from
and after the Commencement Date, all compensation and reimbursement of expenses to the
extent Allowed by the Bankruptcy Court under section 330 or 503 of the Bankruptcy Code, and
any fees and charges assessed against the estates of the Consolidated Debtors under section 1930
of chapter 123 of title 28 of the United States Code.
1.3 ADR Procedures means the procedures established pursuant to the Alternative
Dispute Resolution Procedures Order for Affirmative Claims of Debtors Under Derivatives
Contracts approved and entered by the Bankruptcy Court on September 17, 2009 [Docket No.
5207]; the Order Pursuant to Section 105 of the Bankruptcy Code, Bankruptcy Rule 9014, and
General Order M-390 Authorizing the Debtors to Implement Claims Hearing Procedures and
Alternative Dispute Resolution Procedures for Claims Against Debtors approved and entered by
the Bankruptcy Court on April 19, 2010 [Docket No. 8474]; the Order Supplementing the
September 17, 2009 Alternative Dispute Resolution Procedures Order to Add a Fourth Mediator
approved and entered by the Bankruptcy Court on September 23, 2010 [Docket No. 11537]; and
the Tier 2 Alternative Dispute Resolution Procedures Order for Affirmative Claims of Debtors
Under Derivatives Contracts for Amounts Not More Than $1 Million approved and entered by
the Bankruptcy Court on September 27, 2010 [Docket No. 11649].
1.4 Affiliate shall have the meaning assigned to such term in section 101(2) of the
Bankruptcy Code.
1.5 Aggregate LBT Guarantee Claims Distribution means the total Distribution that
would have been made to holders of Third-Party Guarantee Claims for which LBT is the
applicable Primary Obligor but for the reallocation of such Distribution to holders of Allowed
Senior Unsecured Claims, Allowed General Unsecured Claims and Allowed Subordinated
Unsecured Claims pursuant to Section 9.3 of the Plan.
1.6 Aggregate Subordinated Unsecured Claims Distribution means the total
Distribution that would have been made to holders of Subordinated Unsecured Claims against
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LBHI but for the reallocation of such Distribution to holders of Allowed Senior Unsecured
Claims pursuant to Section 9.2 of the Plan.
1.7 Allowed means, with reference to any Claim against the Debtors, (a) any Claim
that has been listed by the Debtors in their Schedules, as such Schedules may be amended by the
Debtors from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount
and not disputed or contingent and for which no contrary proof of claim has been filed, (b) any
Claim allowed hereunder, (c) any Claim that is not Disputed, (d) any Claim that is compromised,
settled, or otherwise resolved pursuant to authority granted pursuant to a Final Order of the
Bankruptcy Court or under Article XII of the Plan, or (e) any Claim that, if Disputed, has been
Allowed by Final Order; provided, however, that Claims allowed solely for the purpose of voting
to accept or reject the Plan pursuant to an order of the Bankruptcy Court shall not be considered
“Allowed Claims” hereunder. Unless otherwise specified herein or by order of the Bankruptcy
Court, “Allowed Administrative Expense Claim” or “Allowed Claim” shall not, for any purpose
under the Plan, include interest on such Administrative Expense Claim or Allowed Claim from
and after the Commencement Date.
1.8 Argoman RE means Argoman Real Estate Investments Inc.
1.9 Available Cash means (a) all Cash of the Consolidated Debtors realized from their
business operations, the sale or other disposition of their assets, the interest earned on invested
funds, recoveries from Litigation Claims or from any other source or otherwise less (b) the
amount of Cash estimated and reserved by the Consolidated Debtors to (i) adequately fund the
reasonable and necessary projected costs to carry out the provisions of the Plan on and after the
Effective Date, (ii) adequately fund the Disputed Claims Reserve, (iii) pay all fees payable under
section 1930 of chapter 123 of title 28 of the United States Code and (iv) pay all other amounts
required to be paid to manage and/or liquidate the Consolidated Debtors’ assets on and after the
Effective Date.
1.10 Avoidance Actions means any actions commenced or that may be commenced
before or after the Effective Date pursuant to section 544, 545, 547, 548, 549, 550 or 551 of the
Bankruptcy Code.
1.11 Bankruptcy Code means title 11 of the United States Code, as amended from time
to time, as applicable to the Chapter 11 Cases.
1.12 Bankruptcy Court means the United States Bankruptcy Court for the Southern
District of New York having jurisdiction over the Chapter 11 Cases.
1.13 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure, as
promulgated by the United States Supreme Court under section 2072 of title 28 of the United
States Code, and any Local Rules of the Bankruptcy Court.
1.14 Bar Date Order means the Order Pursuant to Section 502(b)(9) of the Bankruptcy
Code and Bankruptcy Rule 3003(c)(3) Establishing the Deadline for Filing Proofs of Claim,
Approving the Form and Manner of Notice Thereof and Approving the Proof of Claim Form
approved and entered by the Bankruptcy Court on July 2, 2009 [Docket No. 4271], as the same
may be amended from time to time.
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1.15 BNC means BNC Mortgage LLC.
1.16 Business Day means any day other than a Saturday, a Sunday, or any other day on
which commercial banks in New York, New York are required to close by law or executive
order.
1.17 Cash means legal tender or equivalents thereof, however denominated.
1.18 Causes of Action means, without limitation, any and all actions, causes of action,
controversies, liabilities, obligations, rights, suits, damages, judgments, Claims, and demands
whatsoever, whether known or unknown, reduced to judgment, liquidated or unliquidated, fixed
or contingent, matured or unmatured, disputed or undisputed, secured or unsecured, assertable
directly or derivatively, existing or hereafter arising, in law, equity, or otherwise, based in whole
or in part upon any act or omission or other event occurring prior to the Commencement Date or
during the course of the Chapter 11 Cases through the Effective Date.
1.19 CES means CES Aviation LLC.
1.20 CES V means CES Aviation V LLC.
1.21 CES IX means CES Aviation IX LLC.
1.22 Chapter 11 Cases means the voluntary cases commenced by the Debtors under
chapter 11 of the Bankruptcy Code, which are being jointly administered and are currently
pending before the Bankruptcy Court, styled In re Lehman Brothers Holdings Inc., et al.,
Chapter 11 Case No. 08-13555 (JMP).
1.23 Claim means (a) any right to payment, whether or not such right is known or
unknown, reduced to judgment, liquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured; or (b) any right to an equitable remedy for
breach of performance if such breach gives rise to a right of payment, whether or not such right
to an equitable remedy is known or unknown, reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured, or unsecured. For avoidance of doubt, “Claim”
includes, without limitation, a right to payment, or equitable relief that gives rise to a right to
payment, that has or has not accrued under non-bankruptcy law that is created by one or more
acts or omissions of the Debtors if: (a) the act(s) or omission(s) occurred before or at the time of
the Effective Date; (b) the act(s) or omission(s) may be sufficient to establish liability when
injuries/damages are manifested; or (c) at the time of the Effective Date, the Debtors have
received one or more demands for payment for injuries or damages arising from such acts or
omissions.
1.24 Class means a category of holders of Claims or Equity Interests as set forth in
Article III of the Plan.
1.25 Collateral means any property or interest in property of the estates of the Debtors
subject to a Lien to secure the payment of a Claim, which Lien is not subject to avoidance or
otherwise invalid and unenforceable under the Bankruptcy Code or applicable non-bankruptcy
law.
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1.26 Commencement Date means (a) September 15, 2008 with respect to LBHI,
(b) September 16, 2008 with respect to LB 745, (c) September 23, 2008 with respect to PAMI,
(d) October 3, 2008 with respect to LBCS, LBSF and LOTC, (e) October 5, 2008 with respect to
LBDP, LCPI, LBCC, LBFP, CES, CES V, CES IX, East Dover and LS Finance, (f) January 7,
2009 with respect to LUXCO, (g) January 9, 2009 with respect to BNC, (h) February 9, 2009
with respect to SASCO and LB Rose Ranch, and (i) April 23, 2009 with respect to LB 2080.
1.27 Confirmation Date means the date upon which the Bankruptcy Court enters a
Confirmation Order on the docket of the Chapter 11 Cases.
1.28 Confirmation Hearing means the hearing held by the Bankruptcy Court, as it may
be continued from time to time, to consider the confirmation of the Plan.
1.29 Confirmation Order means an order of the Bankruptcy Court confirming the Plan
pursuant to section 1129 of the Bankruptcy Code.
1.30 Consolidated Debtors means the Debtors which are substantively consolidated
pursuant to the Plan and the Designated Non-Debtor Affiliates to the extent set forth in Section
7.1.
1.31 Consolidated-Debtor-Controlled Entity means those Affiliates of the Consolidated
Debtors that are managed and controlled by the Consolidated Debtors as of the Effective Date.
1.32 Consolidated Intercompany Claim means any Intercompany Claim against a
Consolidated Debtor asserted by another Consolidated Debtor.
1.33 Creditors’ Committee means the statutory committee of unsecured creditors
appointed in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code.
1.34 Debtor means each of the entities identified on Schedule 1.
1.35 Debtor Consolidated Claim means any Claim against a Designated Non-Debtor
Affiliate asserted by a Consolidated Debtor.
1.36 Debtor-Controlled Entities means those Affiliates of the Debtors that are managed
and controlled by the Debtors as of the Effective Date.
1.37 Derivatives Questionnaire shall have the meaning assigned to such term in the Bar
Date Order.
1.38 Designated Non-Debtor Affiliate means LBIE, LBF, LB Securities, LBAH, LB
RE 1, LB RE 2 and such other Affiliates as the Plan Proponents may identify prior to the
Confirmation Hearing.
1.39 Designated Non-Debtor Affiliate Intercompany Claim means any Intercompany
Claim asserted against any of the Consolidated Debtors by a Designated Non-Debtor Affiliate.
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1.40 Disallowed means a finding or Final Order, or provision of the Plan providing that
a Disputed Claim or Equity Interest, as the case may be, shall not become an Allowed Claim.
1.41 Disclosure Statement means that certain disclosure statement relating to the Plan,
including, without limitation, all exhibits and schedules thereto, as approved by the Bankruptcy
Court pursuant to section 1125 of the Bankruptcy Code.
1.42 Disclosure Statement Order means the order of the Bankruptcy Court approving
the Disclosure Statement as containing adequate information pursuant to section 1125 of the
Bankruptcy Code and approving the procedures for solicitation of the Plan.
1.43 Disputed means, with reference to any Claim, (a) any Claim (whether or not proof
of which was timely and properly filed) that is disputed under the Plan or as to which a timely
objection and/or request for estimation in accordance with section 502(c) of the Bankruptcy
Code and Bankruptcy Rule 3018 has been interposed, which objection and/or request for
estimation has not been withdrawn or determined by a Final Order, or (b) any Claim, proof of
which was required to be filed by a Final Order of the Bankruptcy Court in a form and manner
proscribed in such Final Order, but as to which a proof of claim was not timely or properly filed.
1.44 Disputed Claims Estimated Amount means the aggregate amount estimated to
become Allowed Claims of all Disputed Claims as estimated by the Bankruptcy Court for
distribution purposes.
1.45 Disputed Claims Reserve means Cash in the amount that must be reserved
pursuant to Section 12.5 and Section 12.7 to satisfy Disputed Claims in the event that a Disputed
Claim becomes an Allowed Claim.
1.46 Disputed General Unsecured Claims Estimated Amount means the aggregate
amount estimated to become Allowed General Unsecured Claims of all Disputed General
Unsecured Claims as estimated by the Bankruptcy Court for distribution purposes.
1.47 Disputed Senior Unsecured Claims Estimated Amount means the aggregate
amount estimated to become Allowed Senior Unsecured Claims of all Disputed Senior
Unsecured Claims as estimated by the Bankruptcy Court for distribution purposes.
1.48 Disputed Subordinated Unsecured Claims Estimated Amount means the aggregate
amount estimated to become Allowed Subordinated Unsecured Claims of all Disputed
Subordinated Unsecured Claims as estimated by the Bankruptcy Court for distribution purposes.
1.49 Distribution means any payment or transfer made to a Person other than a Debtor
under the Plan.
1.50 Distribution Date means any date that a Distribution is made.
1.51 East Dover means East Dover Limited.
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1.52 Effective Date means the first Business Day on which the conditions to
effectiveness of the Plan set forth in Article XIV have been satisfied or waived and on which the
Plan shall become effective.
1.53 Equity Interest means shares of common stock, preferred stock, other form of
ownership interest, or any interest or right to convert into such an equity or ownership interest or
acquire any equity or ownership interest, including, without limitation, vested and/or unvested
restricted stock units, contingent stock awards, contingent equity awards, performance stock
units, and stock options or restricted stock awards granted under management ownership plans,
the LBHI 2005 stock incentive plan or the LBHI employee incentive plan, in any Debtor that
was in existence immediately prior to or on the Commencement Date for such Debtor.
1.54 Estimation Order means an order or orders of the Bankruptcy Court (a) estimating
or otherwise establishing, among other things, the amount of the Disputed Claims Estimated
Amount, Disputed Senior Unsecured Claims Estimated Amount, Disputed General Unsecured
Claims Estimated Amount, and Disputed Subordinated Unsecured Estimated Amount, and (b)
entered by the Bankruptcy Court in connection with Section 12.4 hereof. The Estimation Order
may be the Confirmation Order if the Confirmation Order grants the same relief that otherwise
would have been granted in separate Estimation Order(s).
1.55 Excluded Debtors means Merit, LLC, LB Somerset LLC and LB Preferred
Somerset LLC.
1.56 Final Order means an order of the Bankruptcy Court or any other court of
competent jurisdiction as to which the time to appeal, petition for certiorari, or move for
reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other
proceedings for reargument or rehearing shall then be pending or as to which any right to appeal,
petition for certiorari, reargue, or rehear shall have been waived in writing in form and substance
satisfactory to the Plan Proponents or the Plan Administrator, as applicable, or, in the event that
an appeal, writ of certiorari, or reargument or rehearing thereof has been sought, such order of
the Bankruptcy Court or other court of competent jurisdiction shall have been determined by the
highest court to which such order was appealed, or certiorari, reargument, or rehearing shall have
been denied and the time to take any further appeal, petition for certiorari, or move for
reargument or rehearing shall have expired; provided, however, that no order shall fail to be a
Final Order solely because of the possibility that a motion pursuant to section 502(j) of the
Bankruptcy Code, Rule 59 or Rule 60 of the Federal Rules of Civil Procedure or Bankruptcy
Rule 9023 or 9024 may be filed with respect to such order; provided, further, that the Plan
Proponents or Plan Administrator, as applicable, may waive any appeal period so long as a stay
pending appeal has not been granted by order of the Bankruptcy Court or any other court of
competent jurisdiction.
1.57 Foreign Administrator means each person or entity, including those persons or
entities identified on Schedule 2, that is managing the affairs and representing the insolvency
estate of an Affiliate of the Debtors subject to a Foreign Proceeding.
1.58 Foreign Affiliate means an Affiliate of LBHI that is not incorporated in the
United States.
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1.59 Foreign Proceeding means an insolvency or similar proceeding involving an
Affiliate of the Debtors (other than the Chapter 11 Cases), including each of the proceedings
identified on Schedule 3.
1.60 Galleon means Galleon Investments Luxembourg Sarl.
1.61 Gallipoli RE means Gallipoli Real Estate, Inc.
1.62 Gallipoli 2 RE means Gallipoli Two Real Estate, Inc.
1.63 GKI means GKI Development Inc.
1.64 General Unsecured Claim means any Claim asserted other than an Administrative
Expense Claim, a Priority Tax Claim, a Priority Non-Tax Claim, a Secured Claim, a Senior
Unsecured Claim, a Subordinated Unsecured Claim, an Intercompany Claim, a Third-Party
Guarantee Claim and a Section 510(b) Claim.
1.65 Governmental Unit shall have the meaning assigned to such term in
section 101(27) of the Bankruptcy Code.
1.66 Guadelete means Guadelete Investments Sarl.
1.67 Guarantee means a guarantee by a Debtor of an obligation of an Affiliate of the
Debtors.
1.68 Guarantee Questionnaire shall have the meaning assigned to such term in the Bar
Date Order.
1.69 Insured Claim means any Claim against a Debtor for which the Debtor is entitled
to indemnification, reimbursement, contribution or other payment under a policy of insurance
wherein a Debtor is an insured or beneficiary of the coverage of any of the Debtors.
1.70 Intercompany Claim means any Claim against a Debtor asserted by an Affiliate of
the Debtor other than an Administrative Expense Claim, a Priority Non-Tax Claim, and a
Secured Claim.
1.71 IRS means the Internal Revenue Service.
1.72 LB Finance Asia means Lehman Brothers Finance Asia PTE Ltd. (In Creditors’
Voluntary Liquidation).
1.73 LB Lux means Lehman Brothers (Luxembourg) S.A. (in liquidation).
1.74 LB RE 1 means LB RE Financing No. 1 Limited.
1.75 LB RE 2 means LB RE Financing No. 2 Limited.
1.76 LB Rose Ranch means LB Rose Ranch LLC.
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1.77 LB Securities means Lehman Brothers Securities N.V.
1.78 LB 745 means LB 745 LLC.
1.79 LB 2080 means LB 2080 Kalakaua Owners LLC.
1.80 LB UK RE means LB UK RE Holdings Limited.
1.81 LBAH means Lehman Brothers Asia Holdings Limited (In Liquidation).
1.82 LBB means Lehman Brothers Bankhaus AG (in Insolvenz).
1.83 LBCC means Lehman Brothers Commercial Corporation.
1.84 LBCCA means Lehman Brothers Commercial Corporation Asia Limited (in
Liquidation).
1.85 LBCS means Lehman Brothers Commodities Services Inc.
1.86 LBDP means Lehman Brothers Derivatives Products Inc.
1.87 LBF means Lehman Brothers Finance AG (in liquidation) a/k/a/ Lehman Brothers
Finance S.A. (in liquidation).
1.88 LBFP means Lehman Brothers Financial Products Inc.
1.89 LBHI means Lehman Brothers Holdings Inc.
1.90 LBHJ means Lehman Brothers Holdings Japan Inc.
1.91 LBI means Lehman Brothers Inc.
1.92 LBIE means Lehman Brothers International (Europe) (in Administration).
1.93 LBJ means Lehman Brothers Japan Inc.
1.94 LBL means Lehman Brothers Limited (in Administration).
1.95 LBLF means Lehman Brothers Lease & Finance No. 1 Limited.
1.96 LBSA means Lehman Brothers Securities Asia Limited (in Liquidation).
1.97 LBSF means Lehman Brothers Special Financing Inc.
1.98 LBT means Lehman Brothers Treasury Co. B.V.
1.99 LBT Intercompany Claim means any Intercompany Claim asserted against any of
the Consolidated Debtors by LBT.
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1.100 LBT Notes means the various notes issued by LBT.
1.101 LBT Trustee means Rutger Schimmelpenninck and Frédéric Verhoeven (or their
successors), in their capacity as bankruptcy trustee for LBT.
1.102 LCPI means Lehman Commercial Paper Inc.
1.103 Lehman Re means Lehman Re Ltd.
1.104 Lobos RE means Lobos Real Estate, Inc.
1.105 LOTC means Lehman Brothers OTC Derivatives Inc.
1.106 Lien shall have the meaning assigned to such term in section 101(37) of the
Bankruptcy Code.
1.107 Litigation Claims means any and all Causes of Action held by a Debtor.
1.108 LS Finance means Lehman Scottish Finance L.P.
1.109 LUXCO means Luxembourg Residential Properties Loan Finance S.a.r.l.
1.110 Merit means Merit, LLC.
1.111 New Securities means any securities to be distributed by the Consolidated
Debtors pursuant to and in a manner consistent with the provisions of the Plan representing an
interest in any entity formed or utilized by the Consolidated Debtors pursuant to the provisions
of Section 9.4 hereof.
1.112 Non-Consolidated Intercompany Claim means any Intercompany Claim against a
Consolidated Debtor asserted by an Affiliate of LBHI other than a Consolidated Debtor or a
Designated Non-Debtor Affiliate.
1.113 Non-Debtor Affiliate means any Affiliate of LBHI that is not a Debtor.
1.114 Ordinary Course Professional Order means the Order Pursuant to Sections 105(a),
327, 328, and 330 of the Bankruptcy Code Authorizing the Debtors to Employ Professionals
Utilized in the Ordinary Course of Business, approved and entered by the Bankruptcy Court on
November 5, 2008 [Docket No. 1394], as the same may be amended from time to time.
1.115 PAMI means PAMI Statler Arms LLC.
1.116 Paying Foreign Affiliate shall have the meaning assigned to such term in Section
11.8 of the Plan.
1.117 Person shall have the meaning assigned to such term in section 101(41) of the
Bankruptcy Code.
1.118 Philippine 1 means Philippine Investment One (SPV-AMC), Inc.
10
1.119 Philippine 2 means Philippine Investment Two (SPV-AMC), Inc.
1.120 Plan means this chapter 11 plan, including, without limitation, the Plan
Supplement and all exhibits, supplements, appendices, and schedules hereto, either in its present
form or as the same may be altered, amended or modified from time to time.
1.121 Plan Administrator means the Person, designated by the Board of Directors as of
the Effective Date and approved by the Bankruptcy Court, granted with the authority and
charged with the responsibilities of the “Plan Administrator” under the Plan.
1.122 Plan Consideration means Available Cash and New Securities, if any, to be
distributed pursuant to the Plan.
1.123 Plan Proponents means each member of the Ad Hoc Group of Lehman Brothers
Creditors as of the date hereof.
1.124 Plan Supplement means the document containing the forms of documents
specified in Section 17.3 of the Plan.
1.125 Preferred Somerset means LB Preferred Somerset LLC.
1.126 Primary Claim means the underlying claim against an Affiliate that gives rise to a
Third-Party Guarantee Claim to the extent a Guarantee has been issued in respect of such
underlying Claim..
1.127 Primary Obligor means the obligor of a Primary Claim.
1.128 Priority Non-Tax Claim means any Claim, other than an Administrative Expense
Claim or a Priority Tax Claim, entitled to priority in payment under section 507(a) of the
Bankruptcy Code.
1.129 Priority Tax Claim means any Claim of a Governmental Unit of the kind entitled
to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.130 Pro Rata Equity Share means the ratio (expressed as a percentage) of an Equity
Interest in a Debtor to the aggregate amount of Equity Interests in such Debtor.
1.131 Pro Rata LBT Reallocation Share means the ratio (expressed as a percentage) of
(a) an Allowed Senior Unsecured Claim, Allowed General Unsecured Claim or Subordinated
Unsecured Claim to (b) the sum of the aggregate amounts of Allowed Senior Unsecured Claims,
Allowed General Unsecured Claims, Subordinated Unsecured Claims, Disputed Senior
Unsecured Claims Estimated Amount, Disputed General Unsecured Claims Estimated Amount,
and Disputed Subordinated Unsecured Claims Estimated Amount.
1.132 Pro Rata Section 510(b) Claim Share means the ratio (expressed as a percentage)
of (a) an Allowed Section 510(b) Claim to (b) the sum of the aggregated amounts of Allowed
Section 510(b) Claims and Disputed Section 510(b) Claims.
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1.133 Pro Rata Senior Unsecured Claim Share means the ratio (expressed as a
percentage) of (a) the amount of an Allowed Senior Unsecured Claim to (b) the sum of the
aggregated amounts of Allowed Senior Unsecured Claims and Disputed Senior Unsecured
Claims.
1.134 Pro Rata Share means the ratio (expressed as a percentage) of (a) the amount of
an Allowed Senior Unsecured Claim, Allowed General Unsecured Claim, Allowed Subordinated
Unsecured Claim, Allowed Subsidiary Unsecured Claim, Allowed Non-Consolidated
Intercompany Claim, Allowed Consolidated Third-Party Guarantee Claim, Allowed Non-
Consolidated Third-Party Guarantee Claim, Allowed LBT Intercompany Claim, Allowed LBT
Third-Party Guarantee Claim, Allowed Designated Non-Debtor Affiliate Intercompany Claim or
Allowed Designated Non-Debtor Affiliate Third-Party Guarantee Claim to (b) the sum of the
aggregate amounts of Allowed Senior Unsecured Claims, Allowed General Unsecured Claims,
Allowed Subordinated Unsecured Claims, Allowed Subsidiary Unsecured Claims, Allowed Non-
Consolidated Intercompany Claims, Allowed Consolidated Third-Party Guarantee Claims,
Allowed Non-Consolidated Third-Party Guarantee Claims, Allowed LBT Intercompany Claims,
Allowed LBT Third-Party Guarantee Claims, Allowed Designated Non-Debtor Affiliate
Intercompany Claims, Allowed Designated Non-Debtor Affiliate Third-Party Guarantee Claims
and the Disputed Claims Estimated Amount, each of the foregoing as may be adjusted pursuant
to Article IV.
1.135 Reallocated LBT Distribution means if both Class 10 and Class 11 vote to accept
the Plan, 50% of each Aggregate LBT Guarantee Claims Distribution, which shall be distributed
to holders of Allowed Senior Unsecured Claims, Allowed General Unsecured Claims and
Allowed Subordinated Unsecured Claims in accordance with Section 9.3.
1.136 Reallocated Subordinated Distribution means each Aggregate Subordinated
Unsecured Claims Distribution that shall be distributed to holders of Allowed Senior Unsecured
Claims in accordance with Section 9.2.
1.137 Receiving Affiliate shall have the meaning assigned to such term in Section 11.8
of the Plan.
1.138 Released Parties means, collectively, (a) the Plan Administrator, (b) the Creditors’
Committee, (c) each current and former member of the Creditors’ Committee, (d) the Ad Hoc
Group of Lehman Brothers Creditors, (e) each current and former member of the Ad Hoc Group
of Lehman Brothers Creditors, and (f) in the case of (a) through (e), each of their respective
officers, directors, managers, members, accountants, financial advisors, investment bankers,
agents, restructuring advisors, attorneys, representatives or other professionals serving during the
pendency of the Chapter 11 Cases (solely in their capacity as officers, directors, managers,
members, accountants, financial advisors, investment bankers, agents, restructuring advisors,
attorneys, representatives or other professionals serving during the pendency of the Chapter 11
Cases).
1.139 Requisite Amount means (i) with respect to a Class of Claims, two-thirds in
amount and one-half in number of the Allowed Claims of such Class held by creditors, other
than any entity designated pursuant to section 1126(e) of the Bankruptcy Code, that have voted
12
to accept or reject the Plan, and (ii) with respect to a Class of Equity Interests, two-thirds in
amount of the Allowed Equity Interests of such Class held by holders of such Equity Interests,
other than any entity designated pursuant to section 1126(e) of the Bankruptcy Code, that have
voted to accept or reject the Plan.
1.140 SASCO means Structured Asset Securities Corporation.
1.141 Saturn RE means Saturn Real Estate, Inc.
1.142 Schedules means the schedules of assets and liabilities and the statements of
financial affairs filed by the Debtors as required by section 521 of the Bankruptcy Code and
Bankruptcy Rule 1007, including any supplements or amendments thereto through the
Confirmation Date.
1.143 Section 510(b) Claim means any Claim arising from rescission of a purchase or
sale of a security of the Debtors or an Affiliate of the Debtors for damages arising from the
purchase or sale of such a security, or for reimbursement or contribution allowed under section
502 of the Bankruptcy Code on account of such Claim.
1.144 Secured Claim means any Claim (a) to the extent reflected in the Schedules or
upon a proof of claim as a Secured Claim, which is secured by a Lien on Collateral to the extent
of the value of such Collateral, as determined in accordance with section 506(a) of the
Bankruptcy Code or (b) that is subject to a valid right of setoff pursuant to section 553 of the
Bankruptcy Code to the extent of such setoff.
1.145 Senior Notes means, collectively, the various notes issued by LBHI as to which
Bank of New York and Wilmington Trust Co. (or any successor thereto) serve as indenture
trustees.
1.146 Senior Unsecured Claim means any unsecured Claim against LBHI that has a
right of priority in payment to Subordinated Unsecured Claims under the Subordinated Notes but
shall not include any Third-Party Guarantee Claim, any Affiliate Guarantee Claim and any
Intercompany Claim against LBHI.
1.147 Somerset means LB Somerset LLC.
1.148 Stock Trading Restrictions Order means the Order Pursuant to Sections 105(a)
and 362 of the Bankruptcy Code Approving Restrictions on Certain Transfers of Interests in the
Debtors’ Estates and Establishing Notification Procedures Relating Thereto [Docket No. 1386],
as the same may be amended from time to time.
1.149 Subordinated Notes means, collectively, (i) the 6.375% subordinated Deferrable
Interest Debentures due 2052, issued pursuant to the Fourth Supplemental Indenture, dated as of
March 17, 2003, between LBHI and JPMorgan Chase Bank, as trustee; (ii) the 6.375%
Subordinated Deferrable Interest Debentures due October 2052, issued pursuant to the Fifth
Supplemental Indenture, dated as of October 31, 2003, between LBHI and JPMorgan Chase
Bank, as trustee; (iii) the 6.00% Subordinated Deferrable Interest Debentures due 2053, issued
pursuant to the Sixth Supplemental Indenture, dated as of April 22, 2004, between LBHI and
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JPMorgan Chase Bank, as trustee; (iv) the 6.24% Subordinated Deferrable Interest Debentures
due 2054, issued pursuant to the Seventh Supplemental Indenture, dated as of January 18, 2005,
between LBHI and JPMorgan Chase Bank, as trustee; (v) the Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2035, issued pursuant to the Eighth Supplemental Indenture,
dated as of August 19, 2005, between LBHI and JPMorgan Chase Bank, as trustee; (vi) the
5.75% Subordinated Notes due 2017, issued pursuant to the Ninth Supplemental Indenture, dated
as of October 24, 2006, between LBHI and JPMorgan Chase Bank, as trustee; (vii) the Fixed and
Floating Rate Subordinated Notes Due 2032, issued pursuant to the Tenth Supplemental
Indenture, dated as of May 1, 2007, between LBHI and JPMorgan Chase Bank, as trustee;
(viii) the 5.707% Remarketable Junior Subordinated Debentures due 2043, issued pursuant to the
Eleventh Supplemental Indenture, dated as of May 17, 2007, between LBHI and U.S. Bank
National Association, as trustee; (ix) the Floating Rate Remarketable Junior Subordinated
Debentures due 2043, issued pursuant to the Twelfth Supplemental Indenture, dated as of
May 17, 2007, between LBHI and U.S. Bank National Association, as trustee; (x) the 6.50%
Subordinated Notes Due 2017, issued pursuant to the Thirteenth Supplemental Indenture, dated
as of July 19, 2007, between LBHI and The Bank of New York, as trustee; (xi) the 6.875%
Subordinated Notes Due 2037, issued pursuant to the Fourteenth Supplemental Indenture, dated
as of July 19, 2007, between LBHI and The Bank of New York, as trustee; (xii) the 6.75%
Subordinated Notes Due 2017, issued pursuant to the Fifteenth Supplemental Indenture, dated as
of December 21, 2007, between LBHI and The Bank of New York, as trustee; (xiii) the 7.50%
Subordinated Notes Due 2038, issued pursuant to the Sixteenth Supplemental Indenture, dated as
of May 9, 2008, between LBHI and The Bank of New York, as trustee; (xiv) the Fixed/Floating
Rate Subordinated Notes due 2016 Series 5065, issued pursuant to a final term sheet dated as of
September 26, 2006 under the Euro Medium-Term Note Program; (xv) the Floating Rate
Subordinated Notes due 2037 Series EB17, issued pursuant to a final term sheet dated as of
January 23, 2007 under the Euro Medium-Term Note Program; (xvi) the Fixed/Floating Rate
Subordinated Notes due 2019 Series 6222, issued pursuant to the final term sheet dated as of
February 14, 2007 under the Euro Medium-Term Note Program; (xvii) the Fixed Rate
Subordinated Notes, issued by LBHI on June 1, 2007, as described in the Lehman Brothers UK
Capital Funding V LP Prospectus, dated as of May 30, 2007; and (xviii) any other note or similar
instrument that is contractually subordinated to Senior Unsecured Claims.
1.150 Subordinated Unsecured Claim means any Claim arising under the Subordinated
Notes.
1.151 Subsidiary Debtor means each of the Debtors other than LBHI.
1.152 Subsidiary Unsecured Claim means any Claim asserted against a Subsidiary
Debtor other than an Administrative Expense Claim, a Priority Tax Claim, a Priority Non-Tax
Claim, a Secured Claim, a Third-Party Guarantee Claim and an Intercompany Claim.
1.153 Sunrise means Sunrise Finance Co., Ltd.
1.154 Teak RE means Teak Real Estate, Inc.
1.155 Third-Party Guarantee Claim means any Claim asserted against a Debtor by a
Person that is not a Debtor or an Affiliate of the Debtors on the basis of a Guarantee.
14
1.156 TL I means TL I Asset Management Company Limited.
1.157 TL III means TL III Asset Management Company Limited.
1.158 Voting Record Date means the date for determining which holders of Claims are
entitled to receive the Disclosure Statement and vote to accept or reject the Plan, as applicable,
which date is set forth in the Disclosure Statement Order.
1.159 Woodlands means Woodlands Commercial Bank f/k/a Lehman Brothers
Commercial Bank.
Rules of Construction. Wherever from the context it appears appropriate, each term
stated in either the singular or the plural shall include both the singular and the plural and
pronouns stated in the masculine, feminine, or neuter gender shall include the masculine,
feminine, and neuter. Unless otherwise specified, all section, article, schedule, or exhibit
references in the Plan are to the respective Section in, Article of, Schedule to, or Exhibit to, the
Plan. The words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar import
refer to the Plan as a whole and not to any particular section, subsection, or clause contained in
the Plan. Except for section 102(5) of the Bankruptcy Code, which shall not apply, the rules of
construction contained in section 102 of the Bankruptcy Code shall apply to the construction of
the Plan. The headings in the Plan are for convenience of reference only and shall not limit or
otherwise affect the provisions of the Plan.
ARTICLE II.
Treatment of Administrative
Expense Claims and Priority Tax Claims
2.1. Administrative Expense Claims. Except to the extent that a holder of an Allowed
Administrative Expense Claim agrees to a less favorable treatment, each holder of an Allowed
Administrative Expense Claim shall receive Cash from the Consolidated Debtors in an amount
equal to the Allowed amount of such Administrative Expense Claim on the later of the Effective
Date and the date such Administrative Expense Claim becomes an Allowed Administrative
Expense Claim, or as soon thereafter as is practicable; provided, however, that Allowed
Administrative Expense Claims representing liabilities or other obligations incurred in the
ordinary course of business by a Debtor incurred by such Debtor shall be paid in full and
performed by the Consolidated Debtors in the ordinary course of business in accordance with the
terms and subject to the conditions of any agreements governing, instruments evidencing, or
other documents relating to such transactions.
2.2. Professional Compensation and Reimbursement Claims. Other than a
professional retained by the Debtors pursuant to the Ordinary Course Professional Order, any
entity seeking an award of the Bankruptcy Court of compensation for services rendered and/or
reimbursement of expenses incurred through and including the Effective Date under section
105(a), 363(b), 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code shall (a) file
its final application for allowance of such compensation and/or reimbursement by no later than
the date that is 120 days after the Effective Date or such other date as may be fixed by the
Bankruptcy Court, and (b) be paid by or on behalf of the Consolidated Debtors in full and in
15
Cash in the amounts Allowed upon (i) the date the order granting such award becomes a Final
Order, or as soon thereafter as practicable, or (ii) such other terms as may be mutually agreed
upon by the claimant and the Plan Administrator. The Consolidated Debtors are authorized to
pay compensation for professional services rendered and reimburse expenses incurred after the
Effective Date in the ordinary course and without Bankruptcy Court approval.
2.3. Priority Tax Claims. Except to the extent that a holder of an Allowed Priority Tax
Claim has been paid by or on behalf of a Debtor prior to the Effective Date or agrees to less
favorable treatment, each holder of an Allowed Priority Tax Claim shall receive Cash from the
Consolidated Debtors in an amount equal to the Allowed amount of such Priority Tax Claim on
the later of the Effective Date and the date such Priority Tax Claim becomes an Allowed Priority
Tax Claim, or as soon thereafter as is practicable.
ARTICLE III.
Classification of Claims and Equity Interests
3.1. Introduction. The Plan is premised on the substantive consolidation of (a) the
Debtors, (b) if either Class 10 or Class 11 reject the Plan, LBT and (c) if a Class in Classes 12A
through 12n or a corresponding Class in Classes 13A through 13n rejects the Plan, the
corresponding Designated Non-Debtor Affiliate, for the purposes of voting to accept or reject the
Plan, confirmation of the Plan and Distributions under the Plan.
3.2. Classification of Claims. Claims against the Consolidated Debtors, other than
Administrative Expense Claims and Priority Tax Claims, and Equity Interests are classified for
all purposes, including voting and Distribution pursuant to the Plan (except as otherwise
specified in the Plan, including with respect to substantive consolidation as described in Article
VI, Article VII, and Article VIII), as follows:
(a) Class 1 – Priority Non-Tax Claims. Class 1 shall consist of (a) all Priority
Non-Tax Claims asserted against any of the Consolidated Debtors, (b) if LBT is substantively
consolidated pursuant to Article VIII, Claims equivalent thereto asserted against LBT in its
Foreign Proceeding subject to the provisions of Section 8.1, and (c) if a Designated Non-Debtor
Affiliate is substantively consolidated pursuant to Article VII, Claims equivalent thereto asserted
against the Designated Non-Debtor Affiliate in its Foreign Proceeding subject to the provisions
of Section 7.1.
(b) Class 2 – Secured Claims. Class 2 shall consist of (a) all Secured Claims
asserted against any of the Consolidated Debtors, (b) if LBT is substantively consolidated
pursuant to Article VIII, Claims equivalent thereto asserted against LBT in its Foreign
Proceeding subject to the provisions of Section 8.1, and (c) if a Designated Non-Debtor Affiliate
is substantively consolidated pursuant to Article VII, Claims equivalent thereto asserted against
the Designated Non-Debtor Affiliate in its Foreign Proceeding subject to the provisions of
Section 7.1.
(c) Class 3 – Senior Unsecured Claims. Class 3 shall consist of all Senior
Unsecured Claims asserted against LBHI.
16
(d) Class 4 – General Unsecured Claims. Class 4 shall consist of (a) all General
Unsecured Claims asserted against LBHI, (b) if LBT is substantively consolidated pursuant to
Article VIII, Claims equivalent thereto asserted against LBT in its Foreign Proceeding subject to
the provisions of Section 8.1, and (c) if a Designated Non-Debtor Affiliate is substantively
consolidated pursuant to Article VII, Claims equivalent thereto asserted against the Designated
Non-Debtor Affiliate in its Foreign Proceeding subject to the provisions of Section 7.1.
(e) Class 5 – Subordinated Unsecured Claims. Class 5 shall consist of all
Subordinated Unsecured Claims asserted against LBHI.
(f) Classes 6A through 6n – Subsidiary Unsecured Claims. Classes 6A through
6n shall consist of all Subsidiary Unsecured Claims asserted against any of the Consolidated
Debtors and shall be separately designated on a Subsidiary-Debtor-by-Subsidiary-Debtor basis.
(g) Classes 7A through 7n – Consolidated Third-Party Guarantee Claims.
Classes 7A through 7n shall consist of Third-Party Guarantee Claims against any of the
Consolidated Debtors for which another Consolidated Debtor is the Primary Obligor on the
corresponding Primary Claim and shall be separately designated on a Primary-Obligor-by-
Primary-Obligor basis.
(h) Classes 8A through 8n – Non-Consolidated Third-Party Guarantee Claims.
Classes 8A through 8n shall consist of Third-Party Guarantee Claims against any of the
Consolidated Debtors for which an Affiliate of LBHI other than any of the Consolidated
Debtors, LBT or any Designated Non-Debtor Affiliate is the Primary Obligor on the
corresponding Primary Claim and shall be separately designated on a Primary-Obligor-by-
Primary-Obligor basis.
(i) Class 9 – Non-Consolidated Intercompany Claims. Class 9 shall consist of (a)
all Non-Consolidated Intercompany Claims asserted against any of the Consolidated Debtors, (b)
if LBT is substantively consolidated pursuant to Article VIII, Claims equivalent thereto asserted
against LBT in its Foreign Proceeding subject to the provisions of Section 8.1, and (c) if a
Designated Non-Debtor Affiliate is substantively consolidated pursuant to Article VII, Claims
equivalent thereto asserted against the Designated Non-Debtor Affiliate in its Foreign
Proceeding subject to the provisions of Section 7.1.
(j) Class 10 – LBT Intercompany Claims. Class 10 shall consist of all LBT
Intercompany Claims asserted against the Consolidated Debtors by LBT.
(k) Class 11 – LBT Third-Party Guarantee Claims. Class 11 shall consist of all
Third-Party Guarantee Claims asserted against the Consolidated Debtors for which LBT is the
Primary Obligor on the corresponding Primary Claims.
(l) Classes 12A through 12n – Designated Non-Debtor Affiliate Intercompany
Claims. Classes 12A through 12n shall consist of all Designated Non-Debtor Affiliate
Intercompany Claims asserted against the Consolidated Debtors by a Designated Non-Debtor
Affiliate and shall be separately classified on a Designated-Non-Debtor-Affiliate-by-Designated-
Non-Debtor-Affiliate basis.
17
(m) Class 13A through 13n – Designated Non-Debtor Affiliate Third-Party
Guarantee Claims. Classes 13A through 13n shall consist of all Third-Party Guarantee Claims
asserted against the Consolidated Debtors for which a Designated Non-Debtor Affiliate is the
Primary Obligor on the corresponding Primary Claims and shall be separately classified on a
Designated-Non-Debtor-Affiliate-by-Designated-Non-Debtor-Affiliate basis.
(n) Class 14 – Section 510(b) Claims. Class 14 shall consist of (a) all Section
510(b) Claims asserted against any of the Consolidated Debtors, (b) if LBT is substantively
consolidated pursuant to Article VIII, Claims equivalent thereto asserted against LBT in its
Foreign Proceeding subject to the provisions of Section 8.1, and (c) if a Designated Non-Debtor
Affiliate is substantively consolidated pursuant to Article VII, Claims equivalent thereto asserted
against the Designated Non-Debtor Affiliate in its Foreign Proceeding subject to the provisions
of Section 7.1.
(o) Class 15 – Equity Interests. Class 15 shall consist of all Equity Interests in
LBHI.
3.3. Separate Classification on an Entity-by-Entity Basis. The Class 6, Class 7, Class
8, Class 12 and Class 13 Class designations provide for multiple separate classes per category,
which are described together for convenience only. Each Class designated in each of the Class 6,
Class 7, Class 8, Class 12 and Class 13 categories of classification shall constitute a separate
Class for all purposes under the Plan, classified separately by relevant entity as set forth in
Section 3.2(f), (g), (h), (l) and (m), respectively. For example, all Classes in the Class 6 category
are designated on a Subsidiary-Debtor-by-Subsidiary-Debtor basis. As a consequence, all Class
6 Subsidiary Unsecured Claims asserted against LBSF are classified in their own Class
separately from all other Class 6 Subsidiary Unsecured Claims asserted against each other
Subsidiary Debtor.
ARTICLE IV.
Treatment of Claims Against the Debtors and Equity Interests
4.1. Class 1 – Priority Non-Tax Claims.
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each holder of an
Allowed Priority Non-Tax Claim in Class 1 is deemed to have accepted the Plan and is not
entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that the holder of an Allowed Priority
Non-Tax Claim in Class 1 agrees to less favorable treatment or has been paid by or on behalf of
any of the Consolidated Debtors on account of such Priority Non-Tax Claim prior to the
Effective Date, on the later of the Effective Date and the date such Priority Non-Tax Claim
becomes an Allowed Priority Non-Tax Claim, or as soon thereafter as is practicable, each holder
of an Allowed Priority Non-Tax Claim in Class 1 shall be paid in Cash by the Consolidated
Debtors in an amount equal to the Allowed amount of such Priority Non-Tax Claim.
18
4.2. Class 2 – Secured Claims.
(a) Impairment and Voting. Class 2 is unimpaired by the Plan. Each holder of an
Allowed Secured Claim in Class 2 is deemed to have accepted the Plan and is not entitled to vote
to accept or reject the Plan.
(b) Distributions. Except to the extent that the holder of an Allowed Secured
Claim agrees to less favorable treatment, each holder of an Allowed Secured Claim in Class 2
shall be satisfied by, at the option of the Plan Administrator: (i) payment in Cash by the
Consolidated Debtors in an amount equal to the Allowed amount of such Secured Claim on the
later of the Effective Date and the date such Secured Claim becomes an Allowed Secured Claim;
(ii) the sale or disposition proceeds of the Collateral securing such Allowed Secured Claim to the
extent of the value of the Collateral securing such Allowed Secured Claim; (iii) surrender to the
holder of such Allowed Secured Claim of the Collateral securing such Allowed Secured Claim;
or (iv) such treatment that leaves unaltered the legal, equitable, and contractual rights to which
the holder of the Allowed Secured Claim is entitled. In the event an Allowed Secured Claim is
treated under clause (i) or (ii) above, the Liens securing such Claim shall be deemed released and
extinguished without further order of the Bankruptcy Court.
4.3. Class 3 – Senior Unsecured Claims.
(a) Impairment and Voting. Class 3 is impaired by the Plan. Each holder of an
Allowed Senior Unsecured Claim in Class 3 is entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed Senior Unsecured Claim in Class 3
shall receive its (i) Pro Rata Share of Plan Consideration, (ii) Pro Rata Senior Unsecured Claim
Share of Reallocated Subordinated Distributions and (iii) its Pro Rata LBT Reallocation Share of
Reallocated LBT Distributions, if any.
4.4. Class 4 – General Unsecured Claims.
(a) Impairment and Voting. Class 4 is impaired by the Plan. Each holder of an
Allowed General Unsecured Claim in Class 4 is entitled to vote to accept or reject the Plan.
(b) Distributions. Each holder of an Allowed General Unsecured Claim in Class
4 shall receive its (i) Pro Rata Share of Plan Consideration and (ii) its Pro Rata LBT Reallocation
Share of Reallocated LBT Distributions, if any.
4.5. Class 5 – Subordinated Unsecured Claims.
(a) Impairment and Voting. Class 5 is impaired by the Plan. Each holder of an
Allowed Subordinated Unsecured Claim in Class 5 is not entitled to vote to accept or reject the
Plan and is conclusively deemed to have rejected the Plan.
(b) Distributions. Holders of Allowed Subordinated Unsecured Claims in Class 5
shall not receive any Distributions on account of such Allowed Subordinated Unsecured Claims
and instead such Distributions shall be allocated to the holders of Allowed Senior Unsecured
Claims in accordance with Section 9.2 until all holders of Allowed Senior Unsecured Claims are
19
fully satisfied in the Allowed amount of such Senior Unsecured Claims, in which case each
holder of an Allowed Subordinated Unsecured Claim shall receive its (i) Pro Rata Share of Plan
Consideration and (ii) Pro Rata LBT Reallocation Share of Reallocated LBT Distributions, if
any.
4.6. Classes 6A through 6n – Subsidiary Unsecured Claims.
(a) Separate Classes and Treatment. Classes 6A through 6n are separate
independent Classes, as set forth in Article III of the Plan, but are described together in this
Section 4.6 of the Plan.
(b) Impairment and Voting. Classes 6A through 6n are impaired by the Plan.
Each holder of an Allowed Subsidiary Unsecured Claim in Classes 6A through 6n is entitled to
vote to accept or reject the Plan.
(c) Distributions. Each holder of an Allowed Subsidiary Unsecured Claim in
each of Classes 6A through 6n shall receive its Pro Rata Share of Plan Consideration; provided,
however, that if a Class in Classes 6A through 6n votes to accept the Plan, the Pro Rata Share for
each holder of an Allowed Subsidiary Unsecured Claim in such accepting Class shall be
determined using an amount equal to 115% of such Allowed Claim.
4.7. Classes 7A through 7n – Consolidated Third-Party Guarantee Claims.
(a) Separate Classes and Treatment. Classes 7A through 7n are separate
independent Classes, as set forth in Article III of the Plan, but are described together in this
Section 4.7 of the Plan.
(b) Impairment and Voting. Classes 7A through 7n are impaired by the Plan.
Each holder of an Allowed Third-Party Guarantee Claim in Classes 7A through 7n is entitled to
vote to accept or reject the Plan solely for the purposes of effecting a settlement as set forth in
Section 6.2.
(c) Distributions. Each holder of a Third-Party Guarantee Claim in Classes 7A
through 7n is not entitled to a Distribution as a consequence of substantive consolidation;
provided, however, that if a Class in Classes 7A through 7n votes to accept the Plan, each holder
of an Allowed Third-Party Guarantee Claim in such accepting Class shall be entitled to receive
its Pro Rata Share of Plan Consideration, provided that such Pro Rata Share shall be determined
using an amount equal to 25% of such Allowed Third-Party Guarantee Claim, which amount
shall not be subject to further reduction as a consequence of substantive consolidation in
accordance with Article VI, Article VII and Article VIII of the Plan or Distributions received on
account of the corresponding Primary Claim; provided further, however, that the rights of the
Plan Proponents and the Plan Administrator to object to the Allowance of any Third-Party
Guarantee Claim in any of Classes 7A through 7n which accept the Plan on any grounds other
than substantive consolidation are fully reserved.
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4.8. Classes 8A through 8n – Non-Consolidated Third-Party Guarantee Claims.
(a) Separate Classes and Treatment. Classes 8A through 8n are separate
independent Classes, as set forth in Article III of the Plan, but are described together in this
Section 4.8 of the Plan.
(b) Impairment and Voting. Classes 8A through 8n are impaired by the Plan.
Each holder of an Allowed Third-Party Guarantee Claim in Classes 8A through 8n is entitled to
vote to accept or reject the Plan in its respective Class.
(c) Distributions. Each holder of a Third-Party Guarantee Claim in Classes 8A
through 8n shall receive its Pro Rata Share of Plan Consideration; provided, however, that all
Third-Party Guarantee Claims in Classes 8A through 8n shall be deemed Disputed Claims and
not entitled to Distributions under the Plan unless and until (a) each Debtor and Debtor-
Controlled Entity with a Claim against the applicable Primary Obligor has received all
distributions on account of such Claim to the extent enforceable as determined by the
Bankruptcy Court without subordination, reduction or offset of any kind unless otherwise agreed
to by the Plan Proponents or the Plan Administrator, as applicable, and (b) such holder
establishes that it has received all distributions it is entitled to receive on account of its Primary
Claim and such Primary Claim has not otherwise received payment in full. If the conditions set
forth in subclauses (a) and (b) are not properly satisfied as determined by the Bankruptcy Court
before the 3rd anniversary following the Effective Date, such Third-Party Guarantee Claim shall
be deemed a Disallowed Claim and expunged from the claims register; provided, however, that if
a Class in Classes 8A through 8n votes to accept the Plan, all Third-Party Guarantee Claims in
such Class shall not be deemed Disputed Claims and each holder of an Allowed Third-Party
Guarantee Claim in such Class shall be entitled to receive at the time such Claim becomes an
Allowed Claim its Pro Rata Share of Plan Consideration, provided that such Pro Rata Share shall
be determined using an amount equal to 70% of the holder’s Allowed Claim without regard to
whether the conditions set forth in subclauses (a) and (b) above have been satisfied and shall not
be subject to reduction as a consequence of Distributions received on account of the
corresponding Primary Claim; provided further, however, that the rights of the Plan Proponents
and the Plan Administrator to object to the Allowance of any Third-Party Guarantee Claim in
any of Classes 8A through 8n which accept the Plan on any grounds other than the failure of the
conditions set forth in subclauses (a) and (b) to be satisfied are fully reserved.
4.9. Class 9 – Non-Consolidated Intercompany Claims.
(a) Impairment and Voting. Class 9 is impaired by the Plan. Each holder of an
Allowed Non-Consolidated Intercompany Claim in Class 9 is entitled to vote to accept or reject
the Plan.
(b) Distributions. Each holder of an Allowed Non-Consolidated Intercompany
Claim in Class 9 shall receive its Pro Rata Share of Plan Consideration subject to Section 9.5.
21
4.10. Class 10 – LBT Intercompany Claims.
(a) Impairment and Voting. Class 10 is impaired by the Plan. Each holder of an
Allowed LBT Intercompany Claim in Class 10 is entitled to vote to accept or reject the Plan
solely for the purposes of effecting a settlement as set forth in Section 8.2.
(b) Distributions. Each holder of an LBT Intercompany Claim in Class 10 is not
entitled to a Distribution as a consequence of substantive consolidation; provided, however, that
if both Class 10 and Class 11 vote to accept the Plan, the LBT Intercompany Claims will be
Allowed in an aggregate amount equal to $33,170,000,000 and the holder of the Allowed LBT
Intercompany Claim in Class 10 shall be entitled to receive its Pro Rata Share of Plan
Consideration.
4.11. Class 11 – LBT Third-Party Guarantee Claims.
(a) Impairment and Voting. Class 11 is impaired by the Plan. Each holder of an
Allowed Third-Party Guarantee Claim in Class 11 is entitled to vote to accept or reject the Plan
solely for the purposes of effecting a settlement as set forth in Section 8.2.
(b) Distributions. Each holder of a Third-Party Guarantee Claim in Class 11 is
not entitled to a Distribution as a consequence of substantive consolidation; provided, however,
that if both Class 10 and Class 11 vote to accept the Plan, each holder of an Allowed Third-Party
Guarantee Claim in Class 11 shall receive 50% of its Pro Rata Share of Plan Consideration and
shall not be subject to reduction as a consequence of Distributions received on account of the
corresponding Primary Claim with the remaining 50% of such Pro Rata Share of Plan
Consideration made available for Distributions to holders of Allowed Senior Unsecured Claims
in Class 3, Allowed General Unsecured Claims in Class 4 and Allowed Subordinated Unsecured
Claims in Class 5 as described further in Section 9.3.
4.12. Classes 12A through Classes 12n – Designated Non-Debtor Affiliate
Intercompany Claims.
(a) Impairment and Voting. Classes 12A through 12n are impaired by the Plan.
Each holder of an Allowed Designated Non-Debtor Affiliate Intercompany Claim in Classes 12A
through 12n is entitled to vote to accept or reject the Plan solely for the purposes of effecting a
settlement as set forth in Section 7.2.
(b) Distributions. Each holder of a Designated Non-Debtor Affiliate
Intercompany Claim in Classes 12A through 12n is not entitled to a Distribution as a
consequence of substantive consolidation; provided, however, that if a Class in Classes 12A
through 12n and the corresponding Class in Classes 13A through 13n vote to accept the Plan, the
Designated Non-Debtor Affiliate Intercompany Claims in such Class and the Debtor
Consolidated Claims against such holder shall be Allowed in an aggregate amount as agreed to
by the Plan Proponents and the holder of the Allowed Designated Non-Debtor Affiliate
Intercompany Claim, and such holder shall be entitled to receive its Pro Rata Share of Plan
Consideration but solely to the extent the Consolidated Debtors receive distributions from the
Designated Non-Debtor Affiliates on account of the Debtor Consolidated Claims without
22
subordination, reduction or offset of any kind unless agreed to by the Plan Proponents or Plan
Administrator, as applicable.
4.13. Classes 13A through 13n – Designated Non-Debtor Affiliate Third-Party
Guarantee Claims.
(a) Impairment and Voting. Classes 13A through 13n are impaired by the Plan.
Each holder of an Allowed Third-Party Guarantee Claim in Classes 13A through 13n is entitled
to vote to accept or reject the Plan solely for the purposes of effecting a settlement as set forth in
Section 7.2.
(b) Distributions. Each holder of a Third-Party Guarantee Claim in Classes 13A
through 13n is not entitled to a Distribution as a consequence of substantive consolidation;
provided, however, that if a Class in Classes 13A through 13n votes to accept the Plan, each
holder of an Allowed Third-Party Guarantee Claim in such accepting Class shall be entitled to
receive its Pro Rata Share of Plan Consideration, provided that such Pro Rata Share shall be
determined using an amount equal to 70% of such Allowed Third-Party Guarantee Claim, which
amount shall not be subject to further reduction as a consequence of substantive consolidation in
accordance with Article VI, Article VII, and Article VIII of the Plan or Distributions received on
account of the corresponding Primary Claim; provided further, however, that the rights of the
Plan Proponents and the Plan Administrator to object to the Allowance of any Third-Party
Guarantee Claim in any of Classes 13A through 13n which accept the Plan on any grounds other
than substantive consolidation are fully reserved.
4.14. Class 14 – Section 510(b) Claims.
(a) Impairment and Voting. Class 14 is impaired by the Plan. Each holder of a
Section 510(b) Claim in Class 14 is not entitled to vote to accept or reject the Plan and is
conclusively deemed to have rejected the Plan.
(b) Distributions. Holders of Allowed Section 510(b) Claims in Class 14 shall
not receive any Distributions on account of such Allowed Section 510(b) Claims unless and until
all holders of Allowed Claims other than Allowed Section 510(b) Claims are fully satisfied in the
Allowed amount of such Claims, in which case each holder of an Allowed Section 510(b) Claim
shall receive its Pro Rata Section 510(b) Claim Share of remaining Plan Consideration.
4.15. Class 15 – Equity Interests.
(a) Impairment and Voting. Class 15 is impaired by the Plan. Each holder of an
Equity Interest in Class 15 is not entitled to vote to accept or reject the Plan and is conclusively
deemed to have rejected the Plan.
(b) Distributions. On the Effective Date, all Equity Interests in LBHI shall be
cancelled and one new share of LBHI’s common stock shall be issued to the Plan Administrator
which will hold such share for the benefit of the holders of such former Equity Interests
consistent with their former economic entitlements; provided, however, that the Plan
Administrator may not exercise any voting rights appurtenant thereto in conflict with Article X
of the Plan. Each holder of an Equity Interest in LBHI shall neither receive nor retain any
23
property or interest in property on account of such Equity Interests; provided, however, that in
the event that all Allowed Claims in Classes 1 through 14 have been satisfied in full in
accordance with the Bankruptcy Code and the Plan, each holder of an Equity Interest in LBHI
may receive its Pro Rata Equity Share of any remaining assets of the Debtors consistent with
such holder’s rights of priority of payment existing immediately prior to the Commencement
Date. The rights of the holders of former Equity Interests in LBHI shall be nontransferable.
Unless otherwise determined by the Plan Administrator, on the date that LBHI’s Chapter 11
Case is closed, all such former Equity Interests in LBHI shall be deemed cancelled and of no
force and effect provided that such cancellation does not adversely impact the Debtors’ estates.
ARTICLE V.
Acceptance or Rejection of the Plan; Effect of
Rejection by One or More Classes of Claims or Equity Interests
5.1. Classes Entitled to Vote. Except for Classes 1, 2, 5, 14 and 15, all Classes of
Claims and Equity Interests are entitled to vote on the Plan subject to Section 6.2, Section 7.2
and Section 8.2.
5.2. Class Acceptance Requirement. A Class of Claims shall have accepted the Plan
for all purposes herein if at least the Requisite Amount of holders of such Claims have voted to
accept the Plan.
5.3. Undivided Voting. To the extent an Allowed Primary Claim asserted against a
Debtor and a corresponding Allowed Third-Party Guarantee Claim are controlled by the same
Person as of record on the Voting Record Date, such Person shall be required to vote both
Claims in a like manner. In the event that such Person does not vote both Claims in a like
manner, then such Person will be deemed to have voted both Claims to accept the Plan.
5.4. Nonconsensual Confirmation. If any impaired Class of Claims entitled to vote on
the Plan rejects the Plan, the Plan Proponents reserve the right to undertake to have the
Bankruptcy Court confirm the Plan under section 1129(b) of the Bankruptcy Code. With respect
to impaired Classes of Claims or Equity Interests that are deemed to reject the Plan, the Plan
Proponents shall request that the Bankruptcy Court confirm the Plan pursuant to section 1129(b)
of the Bankruptcy Code.
ARTICLE VI.
Substantive Consolidation of the Consolidated Debtors
6.1. Substantive Consolidation of the Consolidated Debtors. The Plan and Disclosure
Statement shall constitute a motion to substantively consolidate each Subsidiary Debtor with
LBHI. Accordingly, on the Effective Date, except as otherwise provided in the Plan, (a) for the
purposes of making Distributions pursuant to the Plan and post Effective Date governance,
subject to Section 11.7 of the Plan, all assets and liabilities of each Consolidated Debtor will be
treated as though they are merged into and with the assets and liabilities of LBHI, (b) no
Distributions will be made under the Plan on account of Consolidated Debtor Intercompany
Claims, and (c) except to the extent set forth in Section 4.7 of the Plan, Third-Party Guarantee
Claims for which a Consolidated Debtor is the Primary Obligor on the corresponding Primary
24
Claim will be deemed merged and eliminated, so that any claim against such Consolidated
Debtor and any Guarantee thereof will be deemed to be one obligation of the Consolidated
Debtors with respect to their consolidated estate.
6.2. Separate Classification for Settlement Purposes. Notwithstanding that the Plan
seeks to substantively consolidate the Subsidiary Debtors, the Plan provides that holders of
Claims in Classes 7A through 7n shall be entitled to vote on the Plan solely for the purposes of
effecting a proposed settlement. To the extent that a Class in Classes 7A through 7n accepts the
Plan, the Plan and the settlements embodied herein shall become binding on the holders of
Claims in such Class and the holders of Allowed Claims in such accepting Class shall be entitled
to receive the Distributions set forth in Section 4.7. Notwithstanding the designation of the
Claims in Classes 7A through 7n as a Class separate from the corresponding Primary Claims, to
the extent that a Class in Classes 7A through 7n rejects the Plan, each Claim in such Class shall
be merged with its corresponding Primary Claim as a consequence of substantive consolidation
and such rejecting Class 7A through 7n, if any, shall be deemed extinguished from the Plan.
ARTICLE VII.
Substantive Consolidation of Certain Designated Non-Debtor Affiliates
7.1. Substantive Consolidation of Certain Designated Non-Debtor Affiliates. The Plan
and Disclosure Statement shall constitute a motion to substantively consolidate certain
Designated Non-Debtor Affiliates with the Consolidated Debtors. On the Effective Date, (a)
except to the extent set forth in Section 4.12 of the Plan, no Distributions will be made under the
Plan on account of Designated Non-Debtor Affiliate Intercompany Claims, and (b) except to the
extent set forth in Section 4.13 of the Plan, Third-Party Guarantee Claims for which a
Designated Non-Debtor Affiliate is the Primary Obligor on the corresponding Primary Claim
will be deemed merged and eliminated, so that any claim against such Designated Non-Debtor
Affiliate and any Guarantee thereof will be deemed to be one obligation of the Consolidated
Debtors with respect to their estates. For the purposes of making Distributions and post
Effective Date governance, including as in Article X, if a Designated Non-Debtor Affiliate
makes its assets available fully to the Plan Administrator for Distribution and management under
the Plan, (x) subject to Section 11.7 of the Plan, all assets and liabilities of the Designated Non-
Debtor Affiliate will be treated as though they are merged into and with the assets and liabilities
of the Consolidated Debtors, subject further to the rights of trust claimants or the statutory rights
of customers pursuant to laws of the applicable local jurisdictions and (y) holders of Allowed
Claims against such Designated Non-Debtor Affiliate shall be entitled to a single distribution and
the treatment set forth in Class 1, 2, 4, 9 or 14, as applicable. If the Designated Non-Debtor
Affiliate refuses or is otherwise unable to make its assets available fully to the Plan
Administrator for Distribution and management under the Plan, no holder of a Claim against the
Designated Non-Debtor Affiliate (including any Third-Party Guarantee Claim except to the
extent otherwise set forth in Section 7.2) shall be entitled to a Distribution under the Plan on
account of such Claim and the Confirmation Order shall provide for such other relief necessary
to give effect to the substantive consolidation, including the economic equivalent thereof, of such
Designated Non-Debtor Affiliate.
7.2. Separate Classification for Settlement Purposes. Notwithstanding that the Plan
seeks to substantively consolidate the Designated Non-Debtor Affiliates, the Plan provides that
25
holders of Claims in Classes 12A through 12n and Classes 13A through 13n shall be entitled to
vote on the Plan for the purposes of effecting a proposed settlement. If both a Class in Classes
12A through 12n and the corresponding Class in Classes 13A through 13n accept the Plan (the
“Accepting Designated Non-Debtor Affiliate Classes”), (a) such Designated Non-Debtor
Affiliate shall not be substantively consolidated with the Consolidated Debtors, (b) the Plan and
the settlements embodied herein shall become binding on the holders of Claims in the Accepting
Designated Non-Debtor Affiliate Classes, (c) the holders of Allowed Claims in the Accepting
Designated Non-Debtor Affiliate Classes shall be entitled to receive the Distributions set forth in
Section 4.12 and Section 4.13, respectively, and (d) holders of Claims against such Designated
Non-Debtor Affiliate shall not be entitled to any Distributions under the Plan but shall instead
retain their rights to receive distributions directly from such Designated Non-Debtor Affiliate. If
a Class in Classes 12A through 12n or the corresponding Class in Classes 13A through 13n votes
to reject the Plan (the “Rejecting Designated Non-Debtor Affiliate Classes”), each Claim in the
Rejecting Designated Non-Debtor Affiliate Classes shall be deemed eliminated as a consequence
of substantive consolidation and the Rejecting Designated Non-Debtor Affiliate Classes shall be
deemed extinguished from the Plan. If a Class in Classes 13A though 13n votes to accept the
Plan but the corresponding Class in Classes 12A through 12n votes to reject the Plan, holders of
Claims in such Class 13 shall be entitled to receive the Distributions set forth in Section 4.13 as a
settlement notwithstanding substantive consolidation.
7.3. Identification of Designated Non-Debtor Affiliates. At any time prior to the entry
of the Confirmation Order or such other time as may be ordered by the Bankruptcy Court, the
Plan Proponents, in their sole discretion, may identify any Affiliate to be a Designated Non-
Debtor Affiliate or declassify any previously identified Designated Non-Debtor Affiliate. To the
extent the Plan Proponents declassify any Affiliate previously identified as a Designated Non-
Debtor Affiliate, the rights of the Plan Proponents and the Plan Administrator to object to the
Allowance of any Intercompany Claim of such Affiliate shall be fully preserved. In the event the
Bankruptcy Court determines not to substantively consolidate a Designated Non-Debtor
Affiliate, the corresponding Claims in the applicable Class in Classes 12A through 12n shall
automatically be deemed to be Claims classified in Class 9 and Claims in Classes 13A through
13n shall automatically be deemed to be Claims classified in Class 8.
ARTICLE VIII.
Substantive Consolidation of LBT
8.1. Substantive Consolidation of LBT. The Plan and Disclosure Statement shall
constitute a motion to substantively consolidate LBT with LBHI. On the Effective Date, except
as otherwise provided in the Plan or the Confirmation Order, (a) for the purposes of making
Distributions and post Effective Date governance, including as in Article X, all assets and
liabilities of LBT will be treated as though they are merged into and with the assets and liabilities
of LBHI, subject to Section 11.7 of the Plan, (b) except to the extent set forth in Section 4.10 of
the Plan, no Distributions will be made under the Plan on account of LBT Intercompany Claims,
(c) except to the extent set forth in Section 4.11 of the Plan, Third-Party Guarantee Claims for
which LBT is the Primary Obligor on the corresponding Primary Claim will be deemed merged
and eliminated, so that any claim against LBT and any Guarantee thereof will be deemed to be
one obligation of the Consolidated Debtors with respect to their estates and (d) holders of
26
Allowed Claims against LBT shall be entitled to a single distribution and the treatment set forth
in Class 1, 2, 4, 9 or 14, as applicable.
8.2. Separate Classification for Settlement Purposes. Notwithstanding that the Plan
seeks to substantively consolidate LBT, the Plan provides that holders of Claims in Class 10 and
Class 11 shall be entitled to vote on the Plan for the purposes of effecting a proposed settlement.
If both Class 10 and Class 11 accept the Plan, (a) LBT shall not be substantively consolidated
with LBHI, (b) the Plan and the settlements embodied herein shall become binding on the
holders of Claims in Class 10 and Class 11, (c) the holders of Allowed Claims in Class 10 and
Class 11 shall be entitled to receive the Distributions set forth in Section 4.10 and Section 4.11,
respectively, and (d) holders of Claims against LBT shall not be entitled to any Distributions
under the Plan but shall instead retain their rights to receive distributions directly from LBT. If
either Class 10 or Class 11 rejects the Plan, each Claim in both Class 10 and Class 11 shall be
deemed eliminated as a consequence of substantive consolidation and both Class 10 and Class 11
shall be deemed extinguished from the Plan.
ARTICLE IX.
Implementation of the Plan
9.1. Plan Administrator.
(a) Service and Removal. The Plan Administrator shall report to the Board of
Directors as reconstituted on the Effective Date and thereafter may be replaced by the Board of
Directors in the Board of Directors’ sole discretion. If the Plan Administrator resigns or is
terminated, the Board of Directors shall select a new Plan Administrator.
(b) Authority. The Plan Administrator shall have the authority and right on
behalf of the Consolidated Debtors, subject to the oversight of the Board of Directors without the
need for Bankruptcy Court approval (unless otherwise indicated), to carry out and implement all
provisions of the Plan, including, without limitation, to:
(i) control and effectuate the Claims reconciliation process, including
to object to, seek to subordinate, compromise or settle any and all Claims against
the Debtors;
(ii) make Distributions to holders of Allowed Claims in accordance
with the Plan;
(iii) exercise its reasonable business judgment to direct and control the
wind down, liquidation and/or abandoning of the assets of the Consolidated
Debtors and assets of LBT and the Designated Non-Debtor Affiliates made
available as set forth in Section 7.1 or Section 8.1, as the case may be;
(iv) prosecute all Litigation Claims, including Avoidance Actions, on
behalf of the Consolidated Debtors, and to elect not to pursue any Litigation
Claims and whether and when to compromise, settle, abandon, dismiss, or
otherwise dispose of any such Litigation Claims, as the Plan Administrator may
determine is in the best interests of the Consolidated Debtors;
27
(v) make payments to existing professionals who will continue to
perform in their current capacities;
(vi) retain professionals to assist in performing its duties under the
Plan;
(vii) hire and terminate employees;
(viii) maintain the books and records and accounts of the Consolidated
Debtors;
(ix) invest Cash of the Consolidated Debtors, including any Cash
proceeds realized from the liquidation of any assets of the Consolidated Debtors,
including any Litigation Claims, and any income earned thereon;
(x) incur and pay reasonable and necessary expenses in connection
with the performance of duties under the Plan, including the reasonable fees and
expenses of professionals retained by the Plan Administrator;
(xi) administer each Debtor’s tax obligations, including (i) filing and
paying tax returns, (ii) requesting, if necessary, an expedited determination of any
unpaid tax liability of each Debtor or its estate under Bankruptcy Code section
505(b) for all taxable periods of such Debtor ending after the Commencement
Date through the liquidation of such Debtor as determined under applicable tax
laws and (iii) representing the interest and account of each Debtor or its estate
before any taxing authority in all matters including, without limitation, any action,
suit, proceeding or audit; and
(xii) prepare and file any and all informational returns, reports,
statements, returns or disclosures relating to the Debtors that are required by any
Governmental Unit or applicable law.
(c) No Liability of Plan Administrator. The Plan Administrator shall have no
liability whatsoever for any acts or omissions in its capacity as Plan Administrator to the
Debtors, the Designated Non-Debtor Affiliates, LBT or holders of Claims against or Equity
Interests in the Debtors, the Designated Non-Debtor Affiliates or LBT other than for gross
negligence or willful misconduct of the Plan Administrator. The Consolidated Debtors shall
indemnify and hold harmless the Plan Administrator for any losses incurred in such capacity,
except to the extent such losses were the result of the Plan Administrator’s gross negligence or
willful misconduct.
9.2. Redistribution of Subordinated Unsecured Claims Recoveries. To give effect to
agreements of holders of Subordinated Unsecured Claims, all Distributions under the Plan shall
be calculated as if each holder of an Allowed Subordinated Unsecured Claim in Class 5 were to
receive its (i) Pro Rata Share of a Distribution of Plan Consideration and (ii) Pro Rata LBT
Reallocation Share of Reallocated LBT Distributions, if any; provided, however, that the
Aggregate Subordinated Unsecured Claims Distribution shall automatically be distributed to
holders of Allowed Senior Unsecured Claims in Class 3 in accordance with Section 4.5 of the
28
Plan until all holders of Allowed Senior Unsecured Claims are fully satisfied in the Allowed
amount of such Senior Unsecured Claims.
9.3. Special Provisions Regarding LBT. For the purpose of settling LBT
Intercompany Claims and Third-Party Guarantee Claims for which LBT is the Primary Obligor
on the corresponding Primary Claims, if both Class 10 and Class 11 accept the Plan, all
Distributions under the Plan shall be calculated as if each holder of an Allowed Third-Party
Guarantee Claim in Class 11 were to receive its Pro Rata Share of a Distribution of Plan
Consideration; provided, however, that 50% of the Aggregate LBT Guarantee Claims
Distribution shall automatically be distributed to holders of Allowed Senior Unsecured Claims in
Class 3, Allowed General Unsecured Claims in Class 4 and Allowed Subordinated Unsecured
Claims in Class 5 (subject to reallocation to Allowed Senior Unsecured Claims) in accordance
with Section 4.11 of the Plan.
9.4. Creation and Distribution of New Securities. In the discretion of the Plan
Administrator, the Consolidated Debtors may form new (or utilize existing) entities that shall
principally hold certain existing assets of the Consolidated Debtors and, in connection therewith,
create New Securities for Distribution under the Plan, which may include one or more separately
managed REIT-Cos. to hold certain real estate assets of the Consolidated Debtors and a separate
entity to manage the remaining assets of the Consolidated Debtors. In the event that the Plan
Administrator determines to make multiple types of New Securities available to holders of
Allowed Claims and Equity Interests, each such holder shall receive of each type of New
Security its (i) Pro Rata Share, (ii) Pro Rata Senior Secured Claim Share, (iii) Pro Rata LBT
Distribution Share and (iv) Pro Rata Equity Share, as applicable.
9.5. Allowance of Non-Consolidated Intercompany Claims. Each holder of a Non-
Consolidated Intercompany Claim shall have an Allowed Non-Consolidated Intercompany
Claim against a Consolidated Debtor only if such holder (a) recognizes and honors each of the
Consolidated Debtors’ and Consolidated-Debtor-Controlled Entities’ Claims, if any, against such
holder as determined by the Bankruptcy Court without giving effect to subordination,
recharacterization or offset and (b) agrees not to set off such Allowed Non-Consolidated
Intercompany Claim against any Claim of a Consolidated Debtor or Consolidated-Debtor-
Controlled Entity against such holder.
9.6. Indenture Trustee, the Creditors’ Committee Members and the Plan Proponents.
Subject to the occurrence of the Effective Date, the reasonable fees and expenses (including
attorneys’ fees) of (i) the indenture trustees with respect to the Senior Notes (but solely to the
extent such fees were incurred in connection with advancing the interests of the Senior Notes);
(ii) the individual members of the Creditors’ Committee, in each case, incurred in their capacities
as indenture trustees or members of the Creditors’ Committee; and (iii) the Plan Proponents,
respectively, shall be Allowed as Administrative Expense Claims and shall be paid by the
Consolidated Debtors.
29
ARTICLE X.
Corporate Governance
10.1. Corporate Existence. After the Effective Date, the Plan Administrator may (a)
decide to (i) maintain each Debtor as a corporation in good standing until such time as all aspects
of the Plan pertaining to such Debtor have been completed, or (ii) at such time as the Plan
Administrator considers appropriate and consistent with the implementation of the Plan
pertaining to such Debtor, dissolve such Debtor or merge such Debtor with another Debtor and
complete the winding up of such Debtor without the necessity for any other or further actions to
be taken by or on behalf of such dissolving Debtor or its shareholder or any payments to be made
in connection therewith subject to the filing of a certificate of dissolution with the appropriate
governmental authorities (including, without limitation, the transfer of all or part of the assets of
such Debtor to a liquidating trust), or (iii) dissolve any Debtor-Controlled Entity and complete
the winding up of such Debtor-Controlled Entity in accordance with applicable law; provided,
however, that the foregoing does not limit the Plan Administrator’s ability to otherwise abandon
an interest in a Debtor-Controlled Entity, and (b) resolve Intercompany Claims in its sole
discretion.
10.2. Management and Administration on a Consolidated Basis. As a consequence of
substantive consolidation, the Consolidated Debtors shall be managed and administered on a
consolidated basis. Any fiduciary duties that the directors and officers of the Consolidated
Debtors may owe to creditors or shareholders, as the case may be, shall be owed on a
consolidated basis.
10.3. Board of Directors.
(a) As of the Effective Date, the existing Board of Directors shall be terminated
and a new Board of Directors shall be selected consisting of 7 members, at least 3 of which shall
be appointed by the Plan Proponents. The remaining members of the Board of Directors shall be
selected by a majority vote of Allowed Claims voting in favor of the Plan. Any holder or group
of holders aggregating not less than $2.5 billion in Claims Allowed as of the Voting Record Date
may nominate an individual for consideration. The Plan Proponents may nominate additional
individuals for consideration to serve as members of the new Board of Directors. To the extent
any new Board of Directors position remains unfilled, the Plan Proponents shall appoint an
additional member to fill such position.
(b) The new Board of Directors shall have full discretion with respect to the
continued retention or termination of any existing managers or advisors to the Consolidated
Debtors.
10.4. Wind-Down. The wind-down and liquidation of each of the Consolidated
Debtors’ assets (as determined for federal income tax purposes) shall occur over a period of 3
years after the Effective Date, subject to receiving a private letter or other equivalent guidance
from the IRS permitting a longer period of time without adversely impacting the status of the
Plan for federal income tax purposes (it being understood that such liquidation may include the
transfer of all or part of the assets of the Debtors to one or more liquidating trusts within the
meaning of Treas. Reg. § 301.7701-4).
30
10.5. Certificate of Incorporation and By-Laws. As of the Effective Date, the
certificate of incorporation and by-laws of each Debtor shall be amended to the extent necessary
to carry out the provisions of the Plan. The amended certificate of incorporation and by-laws of
such Debtor (if any) shall be included in the Plan Supplement.
10.6. Stock Trading Restrictions. The restrictions imposed by the Stock Trading
Restrictions Order shall remain effective and binding through the closing of LBHI’s Chapter 11
Case.
ARTICLE XI.
Provisions Regarding Distributions Under the Plan
11.1. Distributions of Plan Consideration. On the Effective Date, or as soon thereafter
as practicable, after the reservation of funds for or satisfaction in full of Allowed Administrative
Expense Claims, Allowed Priority Tax Claims, Allowed Priority Non-Tax Claims and Allowed
Secured Claims (to the extent the Consolidated Debtors determine to pay such Allowed Secured
Claim in Cash) against a Debtor, the Consolidated Debtors shall make a Distribution of its Plan
Consideration in accordance with the provisions of the Plan to holders of Allowed Claims. After
the initial Distribution, the Plan Administrator on behalf of the Consolidated Debtors shall make
Distributions of Plan Consideration in accordance with the Plan to holders of Allowed Claims
not less frequently than semi-annually on March 30 and September 30 of each year, provided
that each such Distribution in the aggregate is not less than $10,000,000. Notwithstanding the
foregoing, the Plan Administrator may determine, in its sole discretion, (a) to make a
Distribution that is less than $10,000,000 in the aggregate, or (b) not to make a Distribution to
the holder of an Allowed Claim on the basis that it has not yet determined whether to object to
such Claim and such Claim shall be treated as a Disputed Claim for purposes of Distributions
under the Plan until the Plan Administrator determines not to object to such Claim (or the time to
object to Claims expires), agrees with the holder of such Claim to allow such Claim in an agreed
upon amount or objects to such Claim and such Claim is Allowed by a Final Order.
11.2. Minimum Distribution and Manner of Payment. No payment of Cash of less than
$100 shall be made to any holder of an Allowed Claim unless a request therefor is made in
writing to the Plan Administrator. Unless the Person receiving a Distribution under the Plan
agrees otherwise, any Distribution under the Plan shall be made in United States Dollars and, at
the election of the Plan Administrator, by check on a domestic bank or by wire transfer from a
domestic bank. Distributions to foreign creditors may, in addition to the foregoing, be made, at
the option of the Plan Administrator, in such funds and by such means as are necessary or
customary in a particular foreign jurisdiction.
11.3. Distributions Free and Clear. Except as otherwise provided herein, any
Distributions under the Plan shall be free and clear of any Liens, Claims and encumbrances, and
no other entity, including the Debtors or the Plan Administrator shall have any interest, legal,
beneficial or otherwise, in assets transferred pursuant to the Plan.
11.4. Delivery of Distributions and Undeliverable Distributions. Distributions to
holders of Allowed Claims shall be made at the address of each such holder as set forth on the
proof of claim filed by the holder of such Allowed Claim or on the Schedules filed with the
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Bankruptcy Court, unless the address on such Schedules is superseded by a new address as set
forth (a) on a proof of claim filed by a holder of an Allowed Claim or (b) in another writing
notifying the Plan Administrator (at the addresses set forth in Section 17.8) of a change of
address. If any holder’s Distribution is returned as undeliverable, no further Distributions to
such holder shall be made unless and until the Plan Administrator is notified of such holder’s
then-current address, at which time all missed Distributions shall be made to such holder at its
then-current address, without interest. All demands for undeliverable Distributions shall be
made on or before six (6) months after the date such undeliverable Distribution was initially
made. Thereafter, the amount represented by such undeliverable Distribution shall irrevocably
revert to the Consolidated Debtors and any Claim in respect of such undeliverable Distribution
shall be discharged and forever barred from assertion against any Debtor or its respective
property.
11.5. Withholding and Reporting Requirements. In connection with the Plan and all
instruments issued in connection therewith and distributed thereon, the Plan Administrator shall
comply with all applicable withholding and reporting requirements imposed by any federal, state,
or local taxing authority, and all Distributions under the Plan shall be subject to any such
withholding or reporting requirements. Notwithstanding the above, each holder of an Allowed
Claim that is to receive a Distribution under the Plan shall have the sole and exclusive
responsibility for the satisfaction and payment of any tax obligations imposed by any
Governmental Unit, including income, withholding and other tax obligations, on account of such
Distribution. The Plan Administrator has the right, but not the obligation, to not make a
Distribution until such holder has made arrangements satisfactory to such issuing or disbursing
party for payment of any such tax obligations. The Plan Administrator may require, as a
condition to receipt of a Distribution, that the holder of an Allowed Claim complete and return a
Form W-8 or W-9, as applicable, to each such holder. If the Plan Administrator makes such a
request and the holder fails to comply before the date that is 180 days after the request is made,
the amount of such Distribution shall irrevocably revert to the Consolidated Debtors and any
Claim in respect of such Distribution shall be discharged and forever barred from assertion
against such Debtor or its respective property.
11.6. Time Bar to Cash Payment Rights. Checks issued in respect of Allowed Claims
shall be null and void if not negotiated within 90 days after the date of issuance thereof.
Requests for reissuance of any check shall be made to the Plan Administrator by the holder of
the Allowed Claim to whom such check originally was issued. Any claim in respect of such a
voided check shall be made on or before 90 days after the expiration of the 90-day period
following the date of issuance of such check. Thereafter, the amount represented by such voided
check shall irrevocably revert to the Consolidated Debtor and any Claim in respect of such
voided check shall be discharged and forever barred from assertion against any Debtor and its
property.
11.7. Setoffs and Recoupment. The Consolidated Debtors may, but shall not be
required to, set off against or recoup from any Claim and the payments to be made pursuant to
the Plan in respect of such Claim any Claims of any nature whatsoever that any Debtors may
have against the claimant, but neither the failure to do so nor the allowance of any Claim
hereunder shall constitute a waiver or release by the Consolidated Debtors of any such Claim any
Debtors may have against such claimant. Furthermore, the substantive consolidation of any
32
Debtor with any other Debtor or other Affiliate pursuant to the Plan shall not create mutuality for
purposes of determining setoff rights of any holder of any Claim or provide or expand any rights
of subordination.
11.8. Net Distributions to Foreign Affiliates. In the event a Distribution to a Foreign
Affiliate (the “Receiving Affiliate”) would affect the amount of Distributions the Consolidated
Debtors receive from another Foreign Affiliate (the “Paying Foreign Affiliate”) as a consequence
of such Paying Foreign Affiliate being a creditor of the Receiving Affiliate, the Consolidated
Debtors may, but are not required to, reduce or net any Distribution to a Receiving Affiliate by
the anticipated distribution the Paying Foreign Affiliate is due to receive from the Receiving
Affiliate.
11.9. Allocation of Distributions. Distributions to any holder of an Allowed Claim
shall be allocated first to the principal portion of any such Allowed Claim (as determined for
federal income tax purposes), and, only after the principal portion of any such Allowed Claim is
satisfied in full, to any portion of such Allowed Claim comprising interest (but solely to the
extent that interest is an allowable portion of such Allowed Claim).
11.10. Maximum Distribution. In no event shall any holder of any Allowed Claim
receive Distributions under the Plan in excess of the Allowed amount of such Claim, including
after taking into account amounts received from sources other than the Debtors on account of
such Allowed Claim.
ARTICLE XII.
Procedures for Treating Disputed Claims
12.1. Objections. As of the Effective Date, objections to, and requests for estimation
of, all Claims against the Debtors may be interposed and prosecuted only by the Plan
Administrator. Objections to and requests for estimation of Claims shall be filed with the Court
and served on the claimant on or before the later of (a) the date that is 2 years after the Effective
Date and (b) such later date as may be fixed by the Bankruptcy Court for cause shown.
12.2. Third-Party Guarantee Claims in Classes 8A through 8n. As of the Effective Date
and notwithstanding any prior determination by the Bankruptcy Court, each Third-Party
Guarantee Claim in Classes 8A through 8n shall be deemed Disputed unless and until (a) (i) each
Debtor with Claims against the applicable Primary Obligor has received all distributions on
account of such Claims to the extent enforceable as determined by the Bankruptcy Court
without being subordinated (statutorily or otherwise), recharacterized, set off or not honored in
any other way and (ii) the applicable holder of such Third-Party Guarantee Claim has
demonstrated that it (or the holder of the Primary Claim) has received all distributions it is or
will ultimately be entitled to receive on account of its Claims against the Primary Obligor, or (b)
the Class containing such Third-Party Guarantee Claim has voted to accept the Plan; provided
further, however, that the rights of the Plan Proponents and the Plan Administrator to object to
the Allowance of any Third-Party Guarantee Claim in any of Classes 8A through 8n which
accept the Plan on any grounds other than the satisfaction of the conditions set forth in
subclauses (a)(i) and (ii) are fully reserved.
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12.3. No Distributions Pending Allowance. Notwithstanding any other provision
hereof, if any portion of a Claim is a Disputed Claim, no Distribution shall be made on account
of such Claim unless and until such Disputed Claim becomes an Allowed Claim.
12.4. Estimation of Claims. An Estimation Order may be used to calculate and to
establish the amount of the Disputed Claims Estimated Amount. The Plan Administrator, or the
Plan Proponents may, at any time, request that the Bankruptcy Court estimate any Disputed
Claim regardless of whether the Plan Administrator or Plan Proponents have previously objected
to such Claim, and the Bankruptcy Court will retain jurisdiction to estimate any Disputed Claim
at any time during litigation concerning any objection to any Disputed Claim, including during
the pendency of any appeal relating to such objection. In the event that the Bankruptcy Court
estimates any Disputed Claim, that estimated amount may, as determined by the Bankruptcy
Court, constitute (a) the Allowed amount of such Disputed Claim, (b) a maximum limitation on
such Disputed Claim, or (c) in the event such Disputed Claim is estimated in connection with the
estimation of other Claims within the same Class, a maximum limitation on the aggregate
amount of Allowed Claims on account of such Disputed Claims so estimated; provided,
however, that if the estimate constitutes the maximum limitation on a Claim, or on more than one
such Claim within a Class of Claims, as applicable, the Plan Administrator or the Plan
Proponents, as the case may be, may elect to pursue supplemental proceedings to object to any
ultimate allowance of any such Disputed Claim. All of the objection, estimation, settlement and
resolution procedures set forth in the Plan are cumulative and not necessarily exclusive of one
another. Disputed Claims may be estimated and subsequently compromised, settled, withdrawn
or resolved by any mechanism approved by the Bankruptcy Court.
12.5. Resolution of Disputed Claims. On and after the Effective Date, the Plan
Administrator shall have the authority to settle or otherwise resolve or withdraw any objections
to Claims and to compromise, settle or otherwise resolve any Disputed Claims. Notwithstanding
any requirements that may be imposed pursuant to Bankruptcy Rule 9019, from and after the
Effective Date, the Plan Administrator shall have the authority to settle or compromise all
Claims and Disputed Claims without further review or approval of the Bankruptcy Court, other
than the settlement or compromise of a Claim or Disputed Claim where the proposed Allowed
amount of such Claim is greater than or equal to $10,000,000. On the date of the first
Distribution that is at least sixty (60) days after the date a Disputed Claim becomes an Allowed
Claim, the Plan Administrator shall remit, solely from the Disputed Claims Reserve to the holder
of such Allowed Claim, Cash equal to the amount such holder would have received as of that
date under the Plan if the Allowed portion of the Disputed Claim had been an Allowed Claim as
of the Effective Date. Upon the occurrence of each Distribution Date after the first Distribution
Date, each holder of a Claim that becomes an Allowed Claim subsequent to the immediately
preceding Distribution Date shall have recourse solely to the Plan Consideration reserved in the
Disputed Claims Reserve to recover Distributions that such holder would have been entitled to
receive through the prior Distribution Date. To the extent that a Disputed Claim against a
Consolidated Debtor is not Allowed or becomes an Allowed Claim in an amount less than the
amount of the Disputed Claim set forth in the proof of claim, or as previously estimated by the
Bankruptcy Court, the Cash held in the Disputed Claims Reserve on account of such Claim but
not distributed to the holder of such Claim in accordance with this Section 12.5 shall be released
from the Disputed Claims Reserve and become Plan Consideration. Notwithstanding anything
34
herein to the contrary, the ADR Procedures shall remain in effect unless and until the Plan
Administrator determines otherwise.
12.6. No Interest. Holders of Disputed Claims shall not be entitled to interest if such
Disputed Claim becomes an Allowed Claim unless the holder of such Allowed Claim is entitled
to postpetition interest on such Claim under the Bankruptcy Code and the Plan.
12.7. Disputed Claims Reserve. On the Effective Date, the Plan Administrator shall
establish a Disputed Claims Reserve and fund such Disputed Claims Reserve with Cash in the
amount of the Disputed Claim Estimated Amount. Such reserved Cash will be transferred to the
Plan Administrator to be held for holders of Disputed Claims. If the Plan Administrator
determines in its sole discretion that the value of the Consolidated Debtors’ assets other than
Cash exceeds the amount of Cash reserved in the Disputed Claims Reserve, the Plan
Administrator may in its discretion release such Cash for Distribution to holders of Allowed
Claims and fund the Disputed Claims Reserve with Plan Consideration when realized from the
future disposition of assets or other available sources.
ARTICLE XIII.
Treatment of Executory Contracts and Unexpired Leases
13.1. Executory Contracts and Unexpired Leases. Pursuant to sections 365(a) and
1123(b)(2) of the Bankruptcy Code, all executory contracts and unexpired leases that exist
between a Debtor and any person or entity shall be deemed rejected by such Debtor, as of the
Effective Date, except for any executory contract or unexpired lease (i) that has been assumed
pursuant to an order of the Bankruptcy Court entered prior to the Effective Date and for which
the motion was filed prior to the Confirmation Date, (ii) as to which a motion for approval of the
assumption or rejection of such executory contract or unexpired lease has been filed prior to the
Confirmation Date, or (iii) that is specifically designated in the Plan Supplement as a contract or
lease to be assumed by the Consolidated Debtors; provided, however, that the Plan Proponents
reserve the right, on or prior to the Confirmation Date, to amend the Plan Supplement to remove
any executory contract or unexpired lease therefrom or add any executory contract or unexpired
lease thereto, in which event such executory contract(s) or unexpired lease(s) shall be deemed to
be, respectively, rejected or assumed. The Plan Proponents shall provide notice of any
amendments to the Plan Supplement to the parties to the executory contracts and unexpired
leases affected thereby. The listing of a document in the Plan Supplement shall not constitute an
admission by the Plan Proponents that such document is an executory contract or an unexpired
lease or that the Debtors have any liability thereunder.
13.2. Approval of Assumption and Rejection of Executory Contracts and Unexpired
Leases. Entry of the Confirmation Order shall, subject to and upon the occurrence of the
Effective Date, constitute (i) the approval, pursuant to sections 365(a) and 1123(b)(2) of the
Bankruptcy Code, of the assumption of the executory contracts and unexpired leases assumed or
assumed and assigned pursuant to the Plan and (ii) the approval, pursuant to sections 365(a) and
1123(b)(2) of the Bankruptcy Code, of the rejection of the executory contracts and unexpired
leases rejected pursuant to the Plan. To the extent any provision of an executory contract or
unexpired lease to be assumed by the Consolidated Debtors under the Plan limits such Debtor’s
35
ability to assign such executory contract or unexpired lease, the effectiveness of such provision
shall be limited or nullified to the full extent provided in section 365(f) of the Bankruptcy Code.
13.3. Cure of Defaults. Except as may otherwise be agreed to by the parties, within
thirty (30) days after the Effective Date, the Consolidated Debtors shall cure any and all
undisputed defaults under any executory contract or unexpired lease assumed by the
Consolidated Debtors pursuant to the Plan in accordance with section 365(b) of the Bankruptcy
Code. All disputed defaults that are required to be cured shall be cured either within thirty (30)
days of the entry of a Final Order determining the amount, if any, of the Consolidated Debtors’
liability with respect thereto, or as may otherwise be agreed to by the parties.
13.4. Bar Date for Filing Proofs of Claim Relating to Executory Contracts and
Unexpired Leases Rejected Pursuant to the Plan. Claims arising out of the rejection of an
executory contract or unexpired lease pursuant to the Plan must be filed with the Bankruptcy
Court and served upon the Consolidated Debtors no later than forty-five (45) days after the later
of (i) notice of entry of an order approving the rejection of such executory contract or unexpired
lease, (ii) notice of entry of the Confirmation Order, and (iii) notice of an amendment to the Plan
Supplement relating to such executory contract or unexpired lease. Except as set forth in the
preceding sentence, all such Claims must otherwise comply with the provisions of the Bar
Date Order, including, without limitation, the Derivatives Questionnaire and the
Guarantee Questionnaire. All such Claims not filed in accordance with the foregoing and
within such time will be forever barred from assertion against the Consolidated Debtors
and their estates. Any Claim arising out of the rejection of an executory contract or unexpired
lease pursuant to the Plan shall be classified pursuant to Article III of the Plan.
13.5. Insurance Policies. All of the Debtors’ insurance policies and any agreements,
documents, or instruments relating thereto, are treated as executory contracts and shall be
deemed assumed under the Plan. Nothing contained herein shall constitute or be deemed a
waiver of any Litigation Claims that the Debtors may hold against any entity, including, without
limitation, the insurer, under any of the Debtors’ policies of insurance.
ARTICLE XIV.
Effectiveness of the Plan
14.1. Conditions Precedent to the Confirmation of the Plan. A condition precedent to
the confirmation of the Plan is that the Bankruptcy Court shall have entered a Confirmation
Order with respect to such Plan in form and substance satisfactory to the Plan Proponents.
14.2. Conditions Precedent to the Effective Date of the Plan. The following are
conditions precedent to the Effective Date of the Plan with respect to each Debtor:
(a) the Confirmation Order, in form and substance acceptable to the Plan
Proponents, shall have been entered;
(b) all actions and all agreements, instruments or other documents necessary to
implement the terms and provisions of the Plan are effected or executed and delivered, as
applicable, in form and substance satisfactory to the Plan Proponents;
36
(c) all authorizations, consents and regulatory approvals, if any, required by the
Debtors in connection with the consummation of the Plan are obtained and not revoked; and
(d) the certificate of incorporation and by-laws of the Debtors shall have been
amended to the extent necessary to effectuate the Plan.
14.3. Waiver of Conditions. Notwithstanding the foregoing, the Plan Proponents
reserve the right to waive the occurrence of the conditions precedent to the Effective Date set
forth in Section 14.2 of the Plan other than Section 14.2(a) of the Plan. Any such waiver may be
effected at any time, without notice, without leave or order of the Bankruptcy Court, and without
any formal action other than proceeding to consummate the Plan. Any actions required to be
taken on the Effective Date shall take place and shall be deemed to have occurred
simultaneously, and no such action shall be deemed to have occurred prior to the taking of any
other such action. If the Plan Proponents decide that one of the conditions precedent to the
Effective Date of the Plan cannot be satisfied and the occurrence of such condition is not waived
or cannot be waived, then the Plan Proponents shall file a notice of the inability to satisfy such
condition precedent with the Bankruptcy Court.
ARTICLE XV.
Effects of Confirmation
15.1. Vesting of Assets. Upon the Effective Date, pursuant to sections 1141(b) and
(c) of the Bankruptcy Code, all property of (a) the Consolidated Debtors’ estates and (b) LBT
and the Designated Non-Debtor Affiliates to the extent substantively consolidated pursuant to the
Plan shall vest in the Consolidated Debtors free and clear of all Claims, Liens, encumbrances,
charges and other interests, except as provided herein. From and after the Effective Date, the
Consolidated Debtors may take any action, including, without limitation, the operation of their
businesses, the use, acquisition, sale, lease and disposition of property, and the entry into
transactions, agreements, understandings or arrangements, whether in or other than in the
ordinary course of business, and execute, deliver, implement, and fully perform any and all
obligations, instruments, documents and papers or otherwise in connection with any of the
foregoing, free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules and in all
respects as if there were no pending cases under any chapter or provision of the Bankruptcy
Code, except as explicitly provided herein.
15.2. Binding Effect. On and after the Confirmation Date, the provisions of the Plan
shall bind any holder of a Claim against, or Equity Interest in, the Debtors and their respective
successors and assigns, whether or not the Claim or Equity Interest of such holder is impaired
under the Plan and whether or not such holder has accepted the Plan.
15.3. Release and Exculpation. On and after the Effective Date, the Debtors and
all entities who have held, hold or may hold Claims against or Equity Interests in (a) any or
all of the Consolidated Debtors and (b) LBT and the Designated Non-Debtor Affiliates to
the extent substantively consolidated pursuant to the Plan (whether proof of such Claims
or Equity Interests has been filed or not), along with such holders’ respective present or
former employees, agents, officers, directors or principals, shall be deemed to have released
the Released Parties from, and none of the Released Parties shall have or incur any liability
37
for, any Claim, Cause of Action or other assertion of liability for any act taken or omitted
to be taken during the Chapter 11 Cases in connection with, or arising out of, the Chapter
11 Cases, the formulation, dissemination, confirmation, consummation or administration of
the Plan, property to be distributed under the Plan or any other act or omission in
connection with the Chapter 11 Cases, the Plan, the Disclosure Statement or any contract,
instrument, document or other agreement related thereto; provided, however, that (i) in no
event shall any Litigation Claim, Cause of Action or other Claim or assertion of liability
against any Released Party for any act taken or omitted to be taken prior to the
Commencement Date be released by the Plan, and (ii) nothing herein shall affect the
liability of any person that otherwise would result from any such act or omission to the
extent such act or omission is determined by a Final Order to have constituted willful
misconduct or gross negligence; provided, further, that nothing in this Plan shall limit the
liability of the professionals of the Debtors or the Creditors’ Committee to their respective
clients pursuant to DR 6-102 of the Model Code of Professional Responsibility.
15.4. Injunction. Except as expressly provided in the Plan, the Confirmation
Order, or a separate order of the Bankruptcy Court, all entities who have held, hold or
may hold Claims against or Equity Interests in any or all of the Debtors and other parties
in interest (whether proof of such Claims or Equity Interests has been filed or not), along
with such holders’ respective present or former employees, agents, officers, directors or
principals, are permanently enjoined, on and after the Effective Date, with respect to any
Claims and Causes of Action which are extinguished or released pursuant to the Plan from
(i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit,
action, or other proceeding of any kind (including, without limitation, any proceeding in a
judicial, arbitral, administrative or other forum) against or affecting the Released Parties
or the property of any of the Released Parties, (ii) enforcing, levying, attaching (including,
without limitation, any prejudgment attachment), collecting, or otherwise recovering by
any manner or means, whether directly or indirectly, any judgment, award, decree, or
order against the Released Parties or the property of any of the Released Parties,
(iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any
encumbrance of any kind against the Released Parties or the property of any of the
Released Parties, (iv) asserting any right of setoff, directly or indirectly, against any
obligation due the Released Parties or the property of any of the Released Parties, except as
contemplated or allowed by the Plan, (v) acting or proceeding in any manner, in any place
whatsoever, that does not conform to or comply with the provisions of the Plan, and
(vi) taking any actions to interfere with the implementation or consummation of the Plan.
15.5. Terms of Injunctions or Stays. Unless otherwise provided in the Plan, the
Confirmation Order, or a separate order of the Bankruptcy Court, all injunctions or stays arising
under or entered during the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code,
or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect
until the closing of all of the Chapter 11 Cases.
15.6. Retention of Litigation Claims and Reservation of Rights.
(a) Except as expressly provided in the Plan, nothing contained in the Plan or the
Confirmation Order shall be deemed to be a waiver or the relinquishment of any rights or
38
Litigation Claims that the Consolidated Debtors may have or choose to assert on behalf of their
respective estates under any provision of the Bankruptcy Code or any applicable nonbankruptcy
law, including, without limitation, (i) any and all Claims against any person or entity, to the
extent such person or entity asserts a crossclaim, counterclaim, and/or Claim for setoff which
seeks affirmative relief against any Debtor, its officers, directors, or representatives, (ii) any and
all Claims or rights arising under any tax sharing agreement among the Debtors and their
Affiliates (including the tax sharing agreement among the Debtors and LBI based on their
regular and consistent course of conduct over many years), (iii) any and all Claims for
reimbursement of costs incurred for the benefit of any Affiliate, including in connection with the
disposition of an Affiliate’s assets, and (iv) any and all Avoidance Actions.
(b) Except as expressly provided in the Plan, nothing contained in the Plan or the
Confirmation Order shall be deemed to be a waiver or relinquishment of any Litigation Claim,
right of setoff, or other legal or equitable defense which a Debtor had immediately prior to the
Commencement Date, against or with respect to any Claim. The Consolidated Debtors shall
have, retain, reserve, and be entitled to assert all such Litigation Claims, rights of setoff, and
other legal or equitable defenses which they had immediately prior to the Commencement Date
fully as if the Chapter 11 Cases had not been commenced, and all of the Debtors’ legal and
equitable rights respecting any Claim may be asserted after the Confirmation Date to the same
extent as if the Chapter 11 Cases had not been commenced; provided, however, that the
foregoing shall not restrict the Consolidated Debtors’ ability to retain, prosecute or settle any
Avoidance Actions.
(c) Except as expressly provided in the Plan, the Plan Administrator shall, after
the Effective Date, retain the rights of each Debtor to prosecute any Litigation Claims that could
have been brought by such Debtor at any time. The Plan Administrator shall prosecute all such
retained Litigation Claims.
ARTICLE XVI.
Retention of Jurisdiction
16.1. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive
jurisdiction of all matters arising under, arising out of, or related to, the Chapter 11 Cases and the
Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
(i) to hear and determine any motions for the assumption, assumption
and assignment or rejection of executory contracts or unexpired leases and the
allowance of any Claims resulting therefrom;
(ii) to determine any and all pending adversary proceedings,
applications and contested matters relating to the Chapter 11 Cases;
(iii) to hear and determine any objection to Claims;
(iv) to enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified, or
vacated;
39
(v) to issue such orders in aid of execution of the Plan to the extent
authorized by section 1142 of the Bankruptcy Code;
(vi) to consider any modifications of the Plan, to cure any defect or
omission or reconcile any inconsistency in any order of the Bankruptcy Court,
including, without limitation, the Confirmation Order;
(vii) to hear and determine all applications for compensation and
reimbursement of expenses of professionals under sections 330, 331 and 503(b) of
the Bankruptcy Code;
(viii) to hear and determine disputes arising in connection with the
interpretation, implementation, or enforcement of the Plan, including any
agreements or documents contemplated by the Plan;
(ix) to issue injunctions, enter and implement other orders, and take
such other actions as may be necessary or appropriate to restrain interference by
any person with the consummation, implementation or enforcement of the Plan,
the Confirmation Order, or any other order of the Bankruptcy Court;
(x) to hear and determine any actions brought against the Plan
Administrator in connection with the Plan;
(xi) to hear and determine any actions brought to recover all assets of
the Debtors and property of the estates, wherever located;
(xii) to hear and determine matters concerning state, local and federal
taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code,
including any requests for expedited determinations under section 505(b) of the
Bankruptcy Code filed, or to be filed, with respect to tax returns for any and all
taxable periods ending after the Commencement Date;
(xiii) to hear all matters relating to Article XV of the Plan, including,
without limitation, all matters relating to the releases, exculpation, and injunction
granted thereunder;
(xiv) to hear any other matter consistent with the provisions of the
Bankruptcy Code; and
(xv) to enter a final decree closing the Chapter 11 Cases.
ARTICLE XVII.
Miscellaneous Provisions
17.1. Dissolution of the Committee. On the Effective Date, the Creditors’ Committee
shall be dissolved and the members thereof shall be released and discharged of and from all
further authority, duties, responsibilities, and obligations related to and arising from and in
40
connection with the Chapter 11 Cases, and the retention or employment of the Creditors’
Committee’s attorneys, accountants, and other agents shall terminate.
17.2. Exemption from Transfer Taxes. Pursuant to section 1146(a) of the Bankruptcy
Code, (a) the issuance, transfer, or exchange of notes or equity securities, (b) the creation of any
mortgage, deed of trust, lien, pledge, or other security interest, (c) the making or assignment of
or surrender of any lease or sublease, or (d) the making of or delivery of any deed or other
instrument of transfer under, in furtherance of, or in connection with the Plan, and any merger
agreements, agreements of restructuring, disposition, liquidation or dissolution, any deeds, bills
of sale, transfers of tangible property, or assignments executed in connection with any
disposition of assets contemplated by the Plan, shall not be subject to any stamp, real estate
transfer, mortgage recording, sales, use or other similar tax.
17.3. Plan Supplement. The amended certificates of incorporations and by-laws of the
Debtors (if any), and a list of any contracts or leases to be assumed or assumed and assigned by
the Debtors in accordance with Section 13.1, shall be contained in the Plan Supplement that is
filed with the Clerk of the Bankruptcy Court at least ten (10) days prior to the last day upon
which holders of Claims may vote to accept or reject the Plan.
17.4. Amendment or Modification of Plan. The Plan Proponents reserve the right to
propose alterations, amendments, or modifications of or to the Plan in writing at any time prior to
the Confirmation Date, provided that the Plan, as altered, amended or modified satisfies the
conditions of sections 1122 and 1123 of the Bankruptcy Code, and the Plan Proponents shall
have complied with section 1125 of the Bankruptcy Code. The Plan may be altered, amended, or
modified at any time after the Confirmation Date and before substantial consummation, provided
that the Plan, as altered, amended or modified satisfies the requirements of sections 1122 and
1123 of the Bankruptcy Code and the Bankruptcy Court, after notice and a hearing, confirms the
Plan, as altered, modified or amended, under section 1129 of the Bankruptcy Code and the
circumstances warrant such alterations, amendments or modifications. A holder of a Claim that
has accepted the Plan shall be deemed to have accepted the Plan, as altered, amended or
modified, if the proposed alteration, amendment or modification does not materially and
adversely change the treatment of the Claims of such holder.
17.5. Withdrawal or Revocation of the Plan.
(a) The Plan Proponents reserve the right to revoke and withdraw the Plan or
to adjourn the Confirmation Hearing with respect to any one or more of the Debtors prior to the
occurrence of the Effective Date. If the Plan Proponents revoke or withdraw the Plan with
respect to any one or more of the Debtors, or if the Effective Date does not occur as to any
Debtor, then, as to such Debtor, the Plan and all settlements and compromises set forth in the
Plan and not otherwise approved by a separate Final Order shall be deemed null and void and
nothing contained herein and no acts taken in preparation for consummation of the Plan shall be
deemed to constitute a waiver or release of any Claims against or Equity Interests in such Debtor
or to prejudice in any manner the rights of any of the Debtors or any other Person, including the
Plan Proponents, in any other further proceedings involving such Debtor.
41
(b) In the event that the Plan Proponents choose to adjourn the Confirmation
Hearing with respect to any one or more of the Debtors, the Plan Proponents reserve the right to
proceed with confirmation of the Plan with respect to those Debtors in relation to which the
Confirmation Hearing has not been adjourned. With respect to those Debtors with respect to
which the Confirmation Hearing has been adjourned, the Plan Proponents reserve the right to
amend, modify, revoke or withdraw the Plan and/or submit any new plan under chapter 11 of the
Bankruptcy Code at such times and in such manner as they consider appropriate, subject to the
provisions of the Bankruptcy Code.
17.6. Courts of Competent Jurisdiction. If the Bankruptcy Court abstains from
exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any
matter arising out of the Plan, such abstention, refusal or failure of jurisdiction shall have no
effect upon and shall not control, prohibit, or limit the exercise of jurisdiction by any other court
having competent jurisdiction with respect to such matter.
17.7. Transactions on Business Days. If the Effective Date or any other date on which
a transaction may occur under the Plan shall occur on a day that is not a Business Day, any
transactions or other actions contemplated by the Plan to occur on such day shall instead occur
on the next succeeding Business Day.
17.8. Notices. Any notices to or requests of the Plan Proponents by parties in interest
under or in connection with the Plan shall be in writing and served either by (a) certified mail,
return receipt requested, postage prepaid, (b) hand delivery, or (c) reputable overnight delivery
service, all charges prepaid, and shall be deemed to have been given when received by:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036-2787
Re: Ad Hoc Group of Lehman Brothers Creditors
17.9. Severability. In the event that the Bankruptcy Court determines, prior to the
Confirmation Date, that any provision of the Plan is invalid, void, or unenforceable, the
Bankruptcy Court shall, with the consent of the Plan Proponents, have the power to alter and
interpret such term or provision to make it valid or enforceable to the maximum extent
practicable, consistent with the original purpose of the term or provision held to be invalid, void,
or unenforceable, and such term or provision shall then be applicable as altered or interpreted.
Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and
provisions of the Plan shall remain in full force and effect and shall in no way be affected,
impaired, or invalidated by such holding, alteration or interpretation. The Confirmation Order
shall constitute a judicial determination and shall provide that each term and provision of the
Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and
enforceable pursuant to its terms.
17.10. Governing Law. Except to the extent the Bankruptcy Code or Bankruptcy Rules
are applicable, the rights and obligations arising under the Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York without giving
effect to the principles of conflicts of law thereof.
42
17.11. Headings. Headings are used in the Plan for convenience and reference only, and
shall not constitute a part of the Plan for any other purpose.
17.12. Exhibits. All exhibits and schedules to the Plan as well as the Plan Supplement
and any exhibits or schedules thereto are incorporated into and are a part of the Plan as if set
forth in full herein.
17.13. Successors and Assigns. All the rights, benefits, and obligations of any person
named or referred to in the Plan shall be binding on, and shall inure to the benefit of, the heirs,
executors, administrators, successors, and/or assigns of such person.
17.14. Special Provisions Regarding Insured Claims. Plan Distributions to each holder
of an Allowed Insured Claim against the Consolidated Debtors shall be made in accordance with
the treatment provided under the Plan for the Class in which such Allowed Insured Claim is
classified; except, that there shall be deducted from any Plan Distribution on account of an
Insured Claim, for purposes of calculating the Allowed amount of such Claim, the amount of any
insurance proceeds actually received by such holder in respect of such Allowed Insured Claim.
Nothing in this Section 17.14 shall constitute a waiver of any Claim, right, or Causes of Action
the Consolidated Debtors or their Estates may hold against any Person, including any insurer.
Pursuant to section 524(e) of the Bankruptcy Code, nothing in the Plan shall release or discharge
any insurer from any obligations to any Person under applicable law or any policy of insurance
under which a Debtor is an insured beneficiary or for purposes of any insurance recovery.
Dated: New York, New York
December 15, 2010
WHITE & CASE LLP
1155 Avenue of the Americas
New York, New York 10036-2787
Telephone: [phone]
Facsimile: [phone]
Gerard Uzzi (GU – 2297)
J. Christopher Shore (JCS – 6031)
By: /s/ Gerard Uzzi
Gerard Uzzi
Attorneys for the Ad Hoc Group of
Lehman Brothers Creditors
Schedule 1
(Debtors)
1. BNC
2. CES
3. CES V
4. CES IX
5. East Dover
6. LB 745
7. LB 2080
8. LB Rose Ranch
9. LBCC
10. LBCS
11. LBDP
12. LBFP
13. LBHI
14. LBSF
15. LCPI
16. LOTC
17. LS Finance
18. LUXCO
19. PAMI
20. SASCO
Schedule 2
(Foreign Administrators)
1. Rutger Schimmelpenninck and Frederic Verhoeven, in their capacity as bankruptcy
trustees (“curators”) for LBT
2. Anthony Victor Lomas, Steven Anthony Pearson, Dan Yoram Schwarzmann, Michael
John Andrew Jervis of PricewaterhouseCoopers LLP as administrators of:
a. LBL
b. Lehman Brothers Holdings PLC (in Administration)
c. LB UK Re Holdings Limited (in Administration)
d. LBIE
e. Storm Funding Limited (in Administration)
f. Mable Commercial Funding Limited (in Administration)
g. Lehman Brothers Europe Limited (in Administration)
h. Lehman Brothers UK Holdings Ltd (in Administration)
i. LB UK Financing Ltd (in Administration)
j. LB SF No. 1 (in Administration)
k. Cherry Tree Mortgages Limited (in Administration)
l. Lehman Brothers Lease and Financing (No 1) Limited (in Administration)
m. Zestdew Limited (in Administration)
n. Monaco NPL (No 1) Limited (in Administration)
o. Lehman Commercial Mortgage Conduit Limited (in Administration)
p. LB RE Financing NO. 3 Limited (in Administration)
q. Lehman Brothers (PTG) Limited (in Administration)
r. Eldon Street Holdings Limited (in Administration)
s. LB Holdings Intermediate 2 Limited (in Administration)
3. Edward Simon Middleton and Patrick Cowley as the Joint and Several Liquidators,
without personal liability, of and for and on behalf of:
a. Lehman Brothers Asia Holdings Limited (In Liquidation)
b. Lehman Brothers Asia Limited (In Liquidation)
c. Lehman Brothers Futures Asia Limited (In Liquidation)
d. Lehman Brothers Securities Asia Limited (in Liquidation)
e. LBQ Hong Kong Funding Limited (In Liquidation)
f. Lehman Brothers Nominees (H.K.) Limited (In Liquidation)
2
g. Lehman Brothers Asia Capital Company (In Liquidation)
h. LBCCA
4. Edward Simon Middleton and Patrick Cowley as Joint Official Liquidators of Lehman
Brothers Equity Finance (Cayman) Limited (In Official Liquidation)
5. LBJ (debtor in possession)
6. LBHJ (debtor in possession)
7. Lehman Brothers Commercial Inc. (debtor in possession)
8. Sunrise (debtor in possession)
9. Chay Fook Yuen, Yap Cheng Ghee and Tay Puay Cheng, as Joint and Several
Liquidators, without personal liability, of and for and on behalf of:
a. Lehman Brothers Investments Pte. Ltd. (In Creditors’ Voluntary Liquidation)
b. Lehman Brothers Finance Asia PTE Ltd. (In Creditors’ Voluntary Liquidation)
Lehman Brothers Commodities Pte. Ltd. (In Creditors’ Voluntary Liquidation)
c. Lehman Brothers Pacific Holdings Pte. Ltd. (In Creditors’ Voluntary Liquidation)
d. Sail Investors Pte. Ltd. (In Creditors’ Voluntary Liquidation)
e. Lehman Brothers Asia Pacific Holdings Pte. Ltd. (In Creditors’ Voluntary
Liquidation)
10. Dr. Michael C. Frege in his capacity as insolvency administration (“Insolvenzverwalter”)
of LBB
11. Neil Singleton and Stephen Parbery, joint and several administrators of:
a. Lehman Brothers Australia Granica Pty Limited (Subject to Deed of Company
Arrangement)
b. Lehman Brothers Real Estate Australia Commercial Pty Limited (Subject to Deed
of Company Arrangement)
c. Lehman Brothers Australia Real Estate Holdings Pty Limited (Subject to Deed of
Company Arrangement)
d. Lehman Brothers Australia Finance Pty Limited (Subject to Deed of Company
Arrangement)
e. Lehman Brothers Australia Holdings Pty Limited (Subject to Deed of Company
Arrangement)
f. Lehman Brothers Australia Limited (In Liquidation)
g. LBHV 1 Pty Limited (Subject to Deed of Company Arrangement)
h. HV 1 Pty Limited (DOCA)
i. HV 2 Pty Limited (DOCA)
12. Mr. Michiel R.B. Gorsira in his capacity of Court appointed receiver (“curator”) of LB
Securities
3
13. PricewaterhouseCoopers Ltd., Zurich, Christiana Suhr-Brunner and Pascal Portmann,
appointed bankruptcy administrators of LBF
14. Claudia C.E. Jansen, appointed bankruptcy administrator of Lehman Brothers Capital
GmbH
15. Maître Jacques Delvaux and Maître Laurent Fisch, court appointed bankruptcy receivers
of Lehman Brothers (Luxembourg) Equity Finance S.A. (en faillite), LB Infrastructure
Europe Holding S.C.A. (en faillite), and LB Infrastructure Europe GP (en faillite), and
court appointed Joint Liquidators of Lehman Brothers (Luxembourg) S.A. (in
liquidation).
16. Monico V. Jacob, Receiver of Philippine Investment One (SPV-AMC), Inc. and
Philippine Investment Two (SPV-AMC), Inc.
17. D. Geoffrey Hunter, provisional liquidator, PricewaterhouseCoopers, of Lehman Re
Schedule 3
(Foreign Proceedings)
The Netherlands
1. LBT, Faillissementsnummer 08.0494-F
The Netherlands-Antilles
2. Bankruptcy of the public company LB Securities (Faillissement van de naamloze
vennootschap LB Securities), E.J.F. no. 2/2009
The United Kingdom
3. LBL
4. Lehman Brothers Holdings PLC (in Administration)
5. LB UK Re Holdings Limited (in Administration)
6. LBIE
7. Storm Funding Limited (in Administration)
8. Mable Commercial Funding Limited (in Administration)
9. Lehman Brothers Europe Limited (in Administration)
10. Lehman Brothers UK Holdings Ltd (in Administration)
11. LB UK Financing Ltd (in Administration)
12. LB SF No. 1 (in Administration)
13. Cherry Tree Mortgages Limited (in Administration)
14. Lehman Brothers Lease and Financing (No 1) Limited (in Administration)
15. Zestdew Limited (in Administration)
16. Monaco NPL (No 1) Limited (in Administration)
17. Lehman Commercial Mortgage Conduit Limited (in Administration)
18. LB RE Financing NO. 3 Limited (in Administration)
19. Lehman Brothers (PTG) Limited (in Administration)
20. Eldon Street Holdings Limited (in Administration)
21. LB Holdings Intermediate 2 Limited (in Administration)
Hong Kong
22. Lehman Brothers Asia Holdings Limited (In Liquidation), HCCW 443 of 2008
23. Lehman Brothers Asia Limited (In Liquidation), HCCW 442 of 2008
24. Lehman Brothers Futures Asia Limited (In Liquidation), HCCW 438 of 2008
25. LB Securities, HCCW 437 of 2008
5
26. LBQ Hong Kong Funding Limited (In Liquidation), HCCW 463 of 2008
27. Lehman Brothers Nominees (H.K.) Limited (In Liquidation), HCCW 464 of 2008
28. Lehman Brothers Asia Capital Company (In Liquidation), HCCW 452 of 2008
29. LBCCA, HCCW 441 of 2008
The Cayman Islands
30. Lehman Brothers Equity Finance (Cayman) Limited (In Official Liquidation), Case No.
374 of 2009
Japan
31. In the Matter of Petition for Commencement of Rehabilitation Proceedings of LBJ,
Tokyo District Court, Heisei 20 (2008) (sai) No. 205
32. In the Matter of Petition for Commencement of Rehabilitation Proceedings of LBHJ,
Tokyo District Court, Heisei 20 (2008) (sai) No. 206
33. In the Matter of Petition for Commencement of Rehabilitation Proceedings of Lehman
Brothers Commercial Inc., Tokyo District Court, Heisei 20 (2008) (sai) No. 207
34. In the Matter of Petition for Commencement of Rehabilitation Proceedings of Sunrise,
Tokyo District Court, Heisei 20 (2008) (sai) No. 208
Singapore
35. Lehman Brothers Investments Pte. Ltd. (In Creditors’ Voluntary Liquidation)
36. Lehman Brothers Finance Asia PTE Ltd. (In Creditors’ Voluntary Liquidation)
37. Lehman Brothers Commodities Pte. Ltd. (In Creditors’ Voluntary Liquidation)
38. Lehman Brothers Pacific Holdings Pte. Ltd. (In Creditors’ Voluntary Liquidation)
39. Sail Investors Pte. Ltd. (In Creditors’ Voluntary Liquidation)
40. Lehman Brothers Asia Pacific Holdings Pte. Ltd. (In Creditors’ Voluntary Liquidation)
Germany
41. In dem Insolvenzverfahren LBB, Court Reference: 810 IN 1120/08 L
42. In dem Insolvenzantragsverfahren uber dasVermogen der Lehman Brothers Capital
GmbH, Court Reference: 810 IN 983/08 L
Australia
43. Lehman Brothers Australia Granica Pty Limited (Subject to Deed of Company
Arrangement)
44. Lehman Brothers Real Estate Australia Commercial Pty Limited (Subject to Deed of
Company Arrangement)
6
45. Lehman Brothers Australia Real Estate Holdings Pty Limited (Subject to Deed of
Company Arrangement)
46. Lehman Brothers Australia Finance Pty Limited (Subject to Deed of Company
Arrangement)
47. Lehman Brothers Australia Holdings Pty Limited (Subject to Deed of Company
Arrangement)
48. Lehman Brothers Australia Limited (In Liquidation)
49. LBHV 1 Pty Limited (Subject to Deed of Company Arrangement)
50. HV 1 Pty Limited (DOCA)
51. HV 2 Pty Limited (DOCA)
Switzerland
52. LBF
Luxembourg
53. Lehman Brothers (Luxembourg) Equity Finance S.A. (en faillite)
54. Lehman Brothers (Luxembourg) S.A. (in liquidation).
55. LB Infrastructure Europe Holding S.C.A. (en faillite)
56. LB Infrastructure Europe GP. (en faillite)
The Philippines
57. In the Matter of: Petition for Rehabilitation with Prayer for Staying All Claims, Actions
and Proceedings Against Philippine Investment One (SPV-AMC), Inc., SP Case No.
M-6682
58. In the Matter of: Petition for Rehabilitation with Prayer for Staying All Claims, Actions
and Proceedings Against Philippine Investment Two (SPV-AMC), Inc., SP Case No.
M-6683
Bermuda
59. In the Matter of Lehman Re Ltd., 2008: No. 2