Exhibit 2.1 IN THE UNITED STATESBANKRUPTCY COURT SOUTHERNDISTRICT OF FLORIDA MIAMIDIVISION (www.flsb.uscourts.gov) In re: Chapter 11 TRANSCAPITAL FINANCIAL CORPORATION, Case No. 06-12644-BKC-AJC Debtor.

IN THE UNITED STATES BANKRUPTCY COURT

 

 

 

In re:	Chapter 11
TRANSCAPITAL FINANCIAL CORPORATION,	Case No. 06-12644-BKC-AJC
Debtor.

 

 

 

 

 

 

 

ARTICLE I      DEFINITIONS	1
ARTICLE II    TREATMENT OF UNCLASSIFIED CLAIMS: ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS AND UNITED STATES TRUSTEE FEES	13

	A.	Allowed Administrative Claims	13
	B.	Priority Tax Claims	14
	C.	United States Trustee Fees	14

 

 

 

 

Transcapital Financial Corporation (“Transcapital”, “Debtor” or “TFC”), debtor and debtor in possession in this Chapter 11 Case, proposes the following plan of liquidation under Section 1121(a) of the Bankruptcy Code:

 

 

 

As used in this Plan, the following terms shall have the respective meanings set forth below, and such meanings shall be equally applicable to the singular and plural forms of the terms defined unless the context requires otherwise.

 

“Administrative Claim” shall mean a Claim against the Estate of the Debtor allowed by order of the Bankruptcy Court pursuant to Section 503(b) and entitled to priority under Section 507(a) (2) or 507(b) of the Bankruptcy Code, including, without limitation: (i) the actual and necessary costs and expenses incurred after the Petition Date of preserving the Debtors Estate and of operating the business of the Debtor; (ii) any payment to be made under this Plan to cure a default on an executory contract or unexpired lease that is assumed pursuant to Section 365 of the Bankruptcy Code, (iii) any post-Petition Date cost, indebtedness or contractual obligation duly and validly incurred or assumed by the Debtor in the ordinary course of business and allowed by the Court, (iv) compensation or reimbursement of expenses of Professionals to the extent allowed by the Bankruptcy Court under Section 3 30(a) or Section 331 of the Bankruptcy Code, (v) any fees or charges assessed against the Debtor’s Estate pursuant to 28 U.S.C. §1930.

 

“Administrative Claims Bar Date ” shall mean the date established by Final Order of the Bankruptcy Court as the last date to request payment of Administrative Claims, other than with respect to (a) Claims of Professionals or other Persons requesting compensation or reimbursement of expenses pursuant to Sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code for services rendered on or before the Effective Date (including any compensation requested by any professional or any other Person for making a substantial contribution in the Chapter 11 Case), and (b) liabilities incurred by the Debtor other than in the ordinary course of business after the Administrative Claims Bar Date but before the Effective Date.

 

“Administrative Claimant” shall mean the holder of an Administrative Claim.

 

“Affiliate” shall mean with respect to any Person, any other Persons that would fall within the definition assigned to such term in Section 101(2) of the Code, if such Person was a debtor in a case under the Code.

 

 

 

“Allowed Claim” shall mean a Claim: (a) (i) proof of which was timely and properly filed on or before the Bar Date or the Administrative Claims Bar Date, as applicable, (ii) proof of which was deemed filed pursuant to Section 1111(a) of the Bankruptcy Code, or (iii) if no such proof was filed or deemed filed, such Claim has been listed by the Debtor on its Schedules filed under Section 521(a)(1) of the Bankruptcy Code as liquidated in amount and not disputed or contingent and, in any case, as to which (A) no objection to the allowance thereof has been or is interposed by the Claims Objection Deadline or any extension thereof, or (B) any such objection has been settled, withdrawn or determined by a Final Order, (b) based on an application of a Professional under Section 330, Section 331, or Section 503 of the Bankruptcy Code for allowance of compensation and reimbursement of expenses in the Chapter 11 Case, to the extent such application is approved by a Final Order; or (c) expressly allowed under this Plan or the Confirmation Order. Unless otherwise specified herein or by order of the Bankruptcy Court, an Allowed Claim shall not include interest on such Claim for the period from and after the Petition Date. In no event is a Claim allowed unless and until it is allowed by Final Order of the Bankruptcy Court or the Claim Objection Deadline (and any extension thereof) has expired and no objection to the Claim has been filed.

 

“Allowed Equity Interest” shall mean any Equity Interest which has not been timely disputed, or if timely disputed, which has been allowed by order of the Court which has become a Final Order.

 

“AMCAP” shall mean America Capital Corporation, a Delaware corporation which owns 65.19% of the common stock issued and outstanding by the Debtor.

 

“AMCAP Case” shall mean the Chapter 11 Case No. 06-12645-BKC-AJC, pending before the United States Bankruptcy Court for the Southern District of Florida.

 

“AMCAP Distribution” shall mean the amount available for distribution to AMCAP on account of the AMCAP’s Allowed Equity Interest in the Debtor.

 

“AMCAP Plan” shall mean the plan of liquidation filed by AMCAP (as may be amended, modified or supplemented) and confirmed by Final Order of the Court, in the AMCAP Case.

 

“Article” shall mean one of the numbered Articles of the Plan.

 

 

“Assets” shall mean shall mean all of the right, title, and interest of the Debtor in and to Property of the Estate.

 

“Available Cash” shall mean Cash available for Distributions to holders of Allowed Claims and Allowed Equity Interests under the Plan, which shall consist of: (i) all Cash remaining in the Estate on the Effective Date after payment in full of all Allowed Administrative Claims, all Allowed Priority Tax Claims and the fees of the Office of the United States Trustee to be paid by the Debtor on the Effective Date, plus (ii) all proceeds from the liquidation of the Liquidating Debtor’s Assets from and after the Effective Date by the Liquidating Agent, provided however that the Liquidating Agent shall at all times maintain the Litigation Reserve, the Tax Reserve, the Disputed Claims Reserve and any other reserves required under the Plan.

 

“Ballot” shall mean the ballot accompanying the Disclosure Statement upon which holders of Claims and Equity Interests in each Impaired Class of Claims and Equity Interests are entitled to vote on the Plan shall indicate their acceptance or rejection of the Plan and, if applicable, such other elections as may be made thereon are to be indicated.

 

“Ballot Deadline” shall mean the last day established by order of the Court for filing a Ballot with the Clerk of the Court.

 

“Bankruptcy Code” shall mean Title 11 of the United States Code, 11 U.S.C. § 101, et. seq., in effect as of the Petition Date, together with all amendments and modifications thereto to the extent applicable to this Chapter 11 Case.

 

“Bankruptcy Court” shall mean the United States Bankruptcy Court for the Southern District of Florida or such other court as may hereafter have jurisdiction over this proceeding.

 

“Bankruptcy Rules” shall mean (a) the Federal Rules of Bankruptcy Procedure and the Official Bankruptcy Forms, as amended and promulgated under Section 2075 of title 28 of the United States Code, (b) the Federal Rules of Civil Procedure, as amended and promulgated under Section 2072 of title 28 of the United States Code, (c) the Local Rules of the United States Bankruptcy Court for the Southern District of Florida, and (d) any standing orders governing practice and procedure issued by the Bankruptcy Court, each as in effect on the Petition Date, together with all amendments and modifications thereto to the extent applicable to this Chapter 11 Case or proceedings herein, as the case may be.

 

“Bar Date” shall mean November 1, 2006, the last date for creditors and holders of Equity Interests to file proofs of Claims or Equity Interests in this Case.

 

“Brierley” shall mean Richard G. Brierley, a Director of the Debtor.

 

“Brierley Future Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Brierley in the amount of 0.333% of the Government Litigation proceeds (plus interest), which Brierly and the Debtor assert was secured by the Government Litigation.

 

“Brierley Past Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Brierley in the amount of $67,200, which Brierly and the Debtor assert was secured by the Government Litigation.

 

 

“Business Day” shall mean a day other than a Saturday, a Sunday, or a day on which commercial banks in Miami, Florida are authorized or required to close.

 

“Burstein” shall mean Jack Burstein, the Debtor’s President and Director.

 

“Burstein Future Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Burstein in the amount of 4.80% of the Government Litigation proceeds (plus interest), which Burstein and the Debtor assert was secured by the Government Litigation.

 

“Burstein Past Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Burstein in the amount of $344,401.00, which Burstein and the Debtor assert was secured by the Government Litigation.

 

“Cash” shall mean legal tender of the United States of America.

 

“Chapter 11 Case” shall mean this Chapter 11 Case No. 06-12644-BKC-AJC commenced on the Petition Date and pending before the United States Bankruptcy Court for the Southern District of Florida.

 

“Claim” shall mean any claim, as that term is defined in Section 101(5) of the Bankruptcy Code, including, without limitation, (a) a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed or contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; (b) a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured; (c) without limiting the generality of the foregoing, all Administrative Claims, Priority Tax Claims, Priority Claims, Secured Claims, Unsecured Claims, and Late-Filed Claims and any liabilities scheduled by the Debtor in this case.

 

“Claims Examiner" shall mean Jeffrey H. Beck, who was appointed as an independent fiduciary, entitled to his own attorney client privilege with his counsel, by the Bankruptcy Court pursuant to that certain Order, dated October 29, 2007, granting the motion to approve the SunTrust Settlement Agreement, pursuant to which he has full authority to (a) review and investigate Claims against the bankruptcy estate of either TFC or AMCAP filed by an Insider of either TFC or AMCAP, or an Affiliate of such Insider and (b) review and negotiate the terms of the Plan.

 

“Claim Objection Deadline” shall mean the last day for the Liquidating Agent to file objections to Claims, which shall be one hundred twenty (120) days after the Effective Date, as set by Final Order of the Bankruptcy Court, subject to further extension for good cause shown.

 

“Class or Classes” shall mean each class or classes of creditors or holders of Interests classified under the Plan pursuant to Section 1122 of the Bankruptcy Code.

 

 

“Clerk of the Court” shall mean the clerk of the Court.

 

“Collateral” shall mean any property or interest in Property of the Estate of the Debtor subject to a Lien to secure the payment or performance of a Claim, which Lien is not subject to avoidance under the Code or otherwise is invalid under the Code or applicable state law.

 

“Confirmation” shall mean the entry by the Court of the Confirmation Order.

 

“Confirmation Date” shall mean the date on which the Clerk of the Court enters the Confirmation Order on the Docket.

 

“Confirmation Hearing” shall mean a hearing held by the Court to consider Confirmation of the Plan pursuant to Section 1128 of the Code.

 

“Confirmation Order” shall mean the order entered by the Court confirming the Plan. “Cook” shall mean Steven Cook, the Debtor’s Senior Vice President and Director.

 

“Cook Future Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Cook in the amount of 3.20% of the Government Litigation proceeds (plus interest), which Cook and the Debtor assert was secured by the Government Litigation.

 

“Cook Past Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Cook in the amount of $168,511.00, which Cook and the Debtor assert was secured by the Government Litigation.

 

“Cooper” shall mean the law firm of Cooper & Carvin, PLLC (n/k/a Cooper & Kirk, PLLC).

 

“Cooper Engagement Letter” shall mean that certain engagement letter dated May 21, 1997, which the Debtor and AMCAP entered into with Cooper in connection with the Government Litigation.

 

“Creditor” shall mean any Person holding a Claim, including Administrative Claims and Claims of the kind specified in Sections 502(b), 502(h), and 502(i) of the Code, and such Person’s heirs, successors, assigns, executors, and personal representatives.

 

“Debtor or Debtor-in-Possession” shall mean TFC. Any reference to the “Debtor” shall also include the Debtor in its capacities as debtor-in-possession in this Case, and vice-versa.

 

“Deficiency Claim” shall mean an Unsecured Claim for the difference between (a) the aggregate amount of an Allowed Claim and (b) the value received on account of the portion of such Allowed Claim that is a Secured Claim.

 

“Director Notes” shall mean the amounts claimed by Harold Brown, Myron Filarski, William Wooldridge, David Albright, Sally P. Gries, John F. McCarthy, Richard Brierly, Jack

 

 

Burstein, Steven Cook, and Robert Sanders, as former or current officers and directors of Transohio Savings Bank, AMCAP and/or the Debtor arising out of indemnification sought from the Debtor.

 

“Disclosure Statement” shall mean the First Amended Disclosure Statement filed by the Debtor, in connection with the Plan and approved by the Court for submission to Creditors as the same may be amended from time to time.

 

“Disputed Amount” shall mean with respect to a particular Disputed Claim, that amount which is equal to the difference, if any, between the Face Amount of such Claim and the amount, if any, of such Claim which the party objecting thereto concedes.

 

“Disputed Claim” shall mean all Claims: (a) which are listed in the Schedules as disputed, contingent or unliquidated or (b) as to which (i) a proof of Claim has been filed, (ii) an objection has been timely filed (and not withdrawn) by the Liquidating Agent, and (iii) no Final Order has been entered thereon. In the event that any part of a Claim is disputed, such portion of the Claim that is disputed shall be deemed to constitute a Disputed Claim for purposes of distribution under this Plan unless a Final Order has been entered allowing such Claim. Without limiting any of the above, a Claim that is the subject of a pending objection, motion, complaint, counterclaim, setoff, avoidance action, Litigation Claim or other defense, or any other proceeding seeking to disallow, subordinate or estimate such Claim filed by the Claims Examiner or the Liquidating Agent, shall be deemed to constitute a Disputed Claim to the extent of the dispute or objection. If a Claim is subject to a dispute, objection or other proceeding challenging the Claim in its entirety, the entire Claim shall be treated as a Disputed Claim.

 

“Disputed Claims Reserve” shall mean the reserve established by the Liquidating Agent in accordance with the provisions of this Plan to hold Cash and instruments for the purposes of reserving Distributions to holders of Disputed Claims pending the determination and allowance, if applicable, thereof by Final Order of the Court. Any unused amounts accounted for in the Disputed Claims Reserve shall become Cash under the Plan, including for Distribution to holders of Allowed Claims and Allowed Equity Interests in accordance with the terms of the Plan.

 

“Distribution” shall mean each distribution of Cash to holders of Allowed Claims and Allowed Equity Interests (including to the Disputed Claims Reserve) pursuant to and under the terms of this Plan by the Liquidating Agent, as applicable, on each Distribution Date.

 

“Distribution Date” shall mean the dates upon which Distributions may be made pursuant to Article V of the Plan.

 

“Distribution Record Date” shall mean the date established by an order of the Court, on which the Liquidating Agent, will cease processing transfers of Claims and Interests, and upon which Allowed Claims and Allowed Equity Interests are determined for purposes of voting on, or receiving Distributions under, the Plan.

 

 

 

“Effective Date” shall mean the date upon which the last of the conditions precedent to the occurrence of the Effective Date set forth in Section 9.02 of the Plan occurs.

 

“Equity Interest” shall mean any ownership or equity interest in the Debtor, including without limitation, interests evidenced by common stock, warrants, options, or other rights to purchase any ownership or equity interest in the Debtor.

 

“Estate” shall mean the Estate of the Debtor created in this Chapter 11 Case pursuant to Section 541 of the Bankruptcy Code on the Petition Date.

 

“Executory Contract” shall mean a contract or unexpired lease to which the Debtor is a party and that is executory within the meaning of Section 365 of the Code.

 

“Face Amount” shall mean with respect to a particular Claim, (a) if the holder of such Claim has not filed a Proof of Claim with the Court within the applicable period of limitation fixed by the Court pursuant to Rule 3003(c)(3) of the Rules, the amount of such Claim that was listed in the Schedules (as originally filed in this Case) as not disputed, contingent or unliquidated; or (b) if the holder of such Claim has filed a Proof of Claim with the Court within the applicable period of limitation fixed by the Court pursuant to Rule 3003(c)(3) of the Rules, the amount stated in such Proof of Claim, or (c) with respect to a Fee Request, the amount to which the applicant would be entitled if its application were to be granted in full.

 

“Fee Request” shall mean an application or request for payment by the Estate of fees, compensation for services rendered or reimbursement of expenses, pursuant to Rule 2016 of the Rules or other applicable provision of the Code or the Rules.

 

“File, Filed, or Filing” means file, filed, or filing with the Court in this Case.

 

“Final Distribution” shall mean the Distribution made on the Final Distribution Date.

 

“Final Distribution Date” shall mean the Distribution Date immediately following which there is no Cash, including Cash in the Disputed Claims Reserve, to distribute to holders of Allowed Claims and Allowed Equity Interests.

 

“Final Order” shall mean an order or judgment of the Court as entered on the Docket that has not been reversed, stayed, modified, or amended, and respecting which the time to appeal, petition for certiorari or seek reargument, review or rehearing has expired, and as to which no appeal, reargument, petition for certiorari, review or rehearing is pending, or as to which any right to appeal, reargue, petition for certiorari or seek review or rehearing has been waived in writing in a manner satisfactory to the Liquidating Agent, or, if any appeal, reargument, petition for certiorari, review or rehearing thereof has been denied, the time to take further appeal or to seek certiorari or further rehearing, review or reargument has expired. If any provision of the Plan requires the entry of a Final Order as a condition to the occurrence or performance of an act, the Liquidating Agent may waive such requirement in accordance with the Plan with Court approval.

 

 

“Government Litigation” shall mean the action commenced by the Debtor and AMCAP against the United States of America on or about August 8, 1995, case styled AMCAP and TFC v. United States of America, No. 95-523C, in the United States Court of Federal Claims, including, without limitation, any and all appellate and related proceedings.

 

“GSPLH” shall mean Goldstein Schechter Price Lucas Horwitz & Co., P.A.

 

“Impaired” shall mean an Allowed Equity Interest that is Impaired within the meaning of Section 1124 of the Code.

 

“Initial Distribution” shall mean the Distributions to be made on the Effective Date pursuant to Article II, Article IV and Article V of the Plan.

 

“Initial Distribution Date” shall mean: (i) with respect to Allowed Administrative Claims, Allowed Priority Tax Claims, fees of the United States Trustee and the Initial Equity Dividend to the holders of Allowed Class 6 Equity Interests, as soon as reasonably practicable after the Effective Date of the Plan; and (ii) with respect to Claims in Classes 1 through 5 under the Plan, the date which is the earlier of (1) the date of entry of a Final Order allowing each such Claim; or (2) as soon as reasonably practicable after the expiration of the Claim Objection Deadline (or any extensions thereof), if no objection to such Claim is filed.

 

“Initial Equity Dividend” shall mean an amount to be distributed to the holders of Allowed Class 6 Equity Interests on the Effective Date of the Plan after accounting for the Litigation Reserve, the Tax Reserve, Disputed Claims Reserve, Administrative Claims and reserving sufficient Available Cash for the payment of all Claims in Classes 1 through 5 of the Plan.

 

“Insider(s)” shall mean those Persons defined in Section 101(3 1) of the Code.

 

“Judgment” shall mean the judgment entered in favor of the Debtor against the United States of America in the Government Litigation.

 

“Judgment Proceeds” shall mean the total amount of the Judgment prior to deducting any attorneys’ fees, costs or related expenses.

 

“Late Filed Claim” shall mean a Claim filed after the Bar Date, but prior to the Confirmation Hearing.

 

“Lien” shall mean any valid and undisputed mortgage, lien, charge, security interest, encumbrance or other security device of any kind affecting any Asset of the Debtor’s Estate.

 

“Liquidating Agent” shall mean Jeffrey H. Beck, who shall serve and be obligated to perform the duties and functions in accordance with Article VIII of the Plan.

 

 

“Liquidating Debtor’s Assets” shall mean all Assets of the Debtor’s Estate, which Assets shall be transferred to and vested in the Liquidating Debtor’s Estate under and in accordance with the terms of the Plan on the Effective Date.

 

“Liquidating Debtor’s Estate” shall mean the estate established pursuant to the Plan for the benefit of holders of Allowed Claims and Allowed Equity Interests in the Estate, into which all of the Assets of the Estate shall be transferred to and vested in on the Effective Date for all purposes under the Plan, which Liquidating Debtor’s Estate and the Liquidating Agent relating thereto, shall be appointed as a representative of the Debtor’s Estate pursuant to Section 1 123(b)(3)(B) of the Bankruptcy Code.

 

“Litigation Claims” shall mean any and all claims, choses in action, causes of action suits, accounts, controversies, agreements, promises, rights to legal remedies, rights to equitable remedies, rights to payments and claims, except the Government Litigation, whether known or unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured and whether assertable directly or derivatively, in law, equity or otherwise, which are owned or held by, or have accrued to, the Debtor or the Estate, whether arising before or after the Petition Date, including without limitation, those which are: (i) property of the Estate under and pursuant to Section 541 of the Bankruptcy Code; (ii) for subrogation and contribution; (iii) for turnover; (iv) for avoidable transfers and preferences under and pursuant to Sections 542 through 550 and 553 of the Bankruptcy Code and applicable state law; (v) to determine the extent, validity and priority of liens and encumbrances; (vi) for surcharge under Section 506(c) of the Bankruptcy Code; (vii) for subordination under Section 510 of the Bankruptcy Code; (viii) related to federal or state securities laws; (ix) direct or derivative claims or causes of action of any type or kind (including the right to set off and recoup as well as to object to or otherwise defend against claims against the estates); (x) for professional malpractice against professionals employed by the Debtor; (xi) against any and all current and/or former officers and directors of the Debtor, including for breach of fiduciary duty; (xii) under and pursuant to any policies of insurance maintained by the Debtor, including without limitation, the directors’ and officers’ liability insurance policy; (xiii) for theft of corporate opportunity; (xiv) for collection on accounts, accounts receivables, loans, notes receivables or other rights to payment; (xv) for the right to seek a determination by the Bankruptcy Court of any tax, fine or penalty relating to a tax, or any addition to a tax, under Section 505 of the Bankruptcy Code; (xvi) which arise under or as a result of any section of the Bankruptcy Code, including Section 362; and (xvii) set forth in Exhibit C attached to the Disclosure Statement or described therein.

 

“Litigation Reserve” shall mean Cash in an amount to be initially determined by the Liquidating Agent and approved by the Court, after notice and hearing, which shall be funded to the Liquidating Agent as soon thereafter as reasonably practicable after the Effective Date, and used exclusively to pay Post Confirmation Administrative Claims, including fees and costs incurred by the Liquidating Agent, his staff and his Professionals in connection with the prosecution of (i) Litigation Claims, (ii) objections to Claims, and (iii) other asserted claims against the Debtor’s Estate, including indemnity Claims. The Liquidating Agent shall file a motion with the Bankruptcy Court for a determination of the appropriate amount of the Litigation Reserve, which shall be determined by Final Order of the Bankruptcy Court.

 

“Other Secured Claims” shall mean Secured Claims other than the Secured Professional Fee Claim.

 

“Person” shall mean any individual, sole proprietorship, partnership (general or limited), joint venture, trust, unincorporated organization, association, corporation, institution, entity, or government (whether federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body, political subdivision or department thereof).

 

“Petition Date” shall mean June 19, 2006, the date on which the Debtor commenced this Case by filing a voluntary petition under Chapter 11 of the Code.

 

“Plan” shall mean this Plan of Liquidation in the present form or as it may be modified, amended, or supplemented from time to time.

 

“Plan Documents” shall mean the documents to be filed as a part of the Plan.

 

“Post-Confirmation Administrative Claim” shall mean a Claim for services rendered or expenses incurred after the Confirmation Date in connection with this Chapter 11 Case.

 

“Post Confirmation Service List” shall mean the list of parties in interest who shall be served with any documents filed with the Court or which are required to be served on any party in interest in this Case on or after the Effective Date, and which shall include SunTrust, counsel to SunTrust, the Marlin Entities, counsel to the Marlin Entities, the United States Trustee and any party who serves a request for notice on the Liquidating Agent.

 

“Post Petition Interest” shall mean interest calculated from the Petition Date or such other date as may be determined by the Court at the variable rate provided for in 28 U.S.C. § 1961.

 

“Pre-Petition” shall mean prior to the Petition Date.

 

“Priority Claims shall mean a Claim (other than an Administrative Claim or Priority Tax Claim) that is entitled to priority under Section 507 of the Code.

 

“Priority Tax Claim” shall mean a Claim (other than an Administrative Claim or Priority Claim) that is entitled to priority under Section 507(a)(8) of the Code.

 

“Professional” shall mean a Person employed in the Chapter 11 Case pursuant to a Final Order in accordance with Section 327, 328, 1103 or 1104 or otherwise of the Bankruptcy Code and to be compensated for services rendered prior to the Effective Date, pursuant to Sections 327, 328, 329, 330, 331 and 363 of the Bankruptcy Code.

 

“Proof of Claim” shall mean any Proof of Claim Filed with the Court with respect to the Debtor pursuant to Bankruptcy Rules 3001 or 3002.

 

 

         “Property of the Estate” shall mean the property defined in Section 541 of the Code.

 

“Pro Rata Share” shall mean, with respect to any Distribution to the Holder of an Allowed Equity Interest, a fraction, the numerator of which will be the amount of such Holder’s Allowed Equity Interest and the denominator of which will be the sum of all Allowed and Disputed Equity Interest in the Class, all determined as of the applicable Distribution date.

 

“Reasonable” shall mean, in the context of fees and costs incurred, that interpretation by the Court in the context of Section 330 of the Bankruptcy Code.

 

        “Rejection Claim” shall mean a Claim arising under Section 502(g) of the Bankruptcy Code from the rejection under Section 365 of the Bankruptcy Code, or under this Plan, of an Executory Contract or unexpired lease which has been rejected.

 

         “Rules” shall mean the Federal Rules of Bankruptcy Procedure.

 

“Sanders” shall mean Robert M. Sanders, a former Director of the Debtor.

 

“Sanders Future Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Sanders in the amount of 0.333% of the Government Litigation proceeds (plus interest), which Sanders and the Debtor assert was secured by the Government Litigation.

 

“Sanders Past Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Sanders in the amount of $67,200, which Sanders and the Debtor assert was secured by the Government Litigation.

 

“Schedules” shall mean the Schedules of assets and liabilities originally filed by the Debtor with the Court and not as the same may be amended from time to time.

 

         “Section” shall mean a numbered subsection of any Article of the Plan.

 

“Secured Claim” shall mean a Claim which, as of the Effective Date of the Plan and, if necessary, pursuant to a valuation by the Bankruptcy Court pursuant to Section 506(a) of the Bankruptcy Code, is secured by a valid, enforceable and perfected mortgage, lien, security interest or other encumbrance of any kind against Assets of the Estate, and which is not subject to avoidance under the Bankruptcy Code or applicable non-bankruptcy law.

 

         “Secured Creditor” shall mean the holder of a Secured Claim.

 

“Secured Professional Fee Claim” shall mean the Secured Claim of Cooper & Kirk, PLLC, which is classified, described and treated in Section 4.02 of the Plan.

 

“Subsequent Distribution Date” shall mean the date after the Initial Distribution Date on which Distributions are made in accordance with Article V of the Plan on account of Allowed Equity Interests and on account of a Disputed Claim that becomes an Allowed Claim by Final Order of the Court.

 

 

“Substantial Consummation” shall mean that the Plan shall be deemed to be substantially consummated under Sections 1101 and 1127(b) of the Code upon completion of the Initial Distributions due on the Initial Distribution Date.

 

“Sun Trust” shall mean SunTrust Bank, Central Florida, National Association, a national banking association, as indenture trustee for the AMCAP Noteholders, pursuant to that certain Indenture dated as of June 15, 1985.

 

“Sun Trust Settlement Agreement” shall mean that certain settlement agreement executed by and among AMCAP, TFC, and SunTrust on October 9, 2007, and approved by the Court on October 29, 2007.

 

“Tax Reserve” shall mean that certain reserve to be established and maintained by the Liquidating Agent from and after the Effective Date for the payment of any tax liability of the Debtor arising from the receipt of the Judgment Proceeds.

 

“TFC” shall mean Transcapital Financial Corporation, the debtor and debtor-in­possession herein.

 

“Trustee Motion” shall mean that certain Motion to Convert Chapter 11 Case to Chapter 7 of the Bankruptcy Code or Motion to Appoint Trustee Pursuant to 11 U.S.C. Sections 1112(B) 1104, 105 and Bankruptcy Rules 1017, 1019 and 9014 Filed by Creditor SunTrust Bank, as Trustee.

 

“TSB Director Notes” shall mean the amounts asserted by David Albright, Myron Filarski, Sally Gries, John McCarthy and William Wooldridge, as directors of Transohio Savings Bank, for payments made, or attorneys’ fees and costs incurred, by the foregoing individuals arising out of indemnification sought from the Debtor.

 

“Unimpaired” shall mean an Allowed Claim or Allowed Equity Interest that is not Impaired within the meaning of Section 1124 of the Code.

 

“United States Trustee Fees” shall mean the fees due to the United States Trustee pursuant to 28 U.S.C. § 1930(a)(6).

 

“Unsecured Claim” shall mean any Claim against the Estate, but not including an Administrative Claim, a Post-Confirmation Administrative Claim, a Priority Tax Claim, a Priority Claim, a Secured Claim or a Late-Filed Claim.

 

“Unsecured Creditor” shall mean the holder of an Unsecured Claim.

 

“Vasquez” shall mean Dora C. Vasquez, a former Accounting Manager of the Debtor.

 

“Vasquez Past Compensation Note” shall mean that certain promissory note issued by the Debtor in favor of Vasquez in the amount of $28,000, which Vasquez and the Debtor assert was secured by the Government Litigation.

 

 

 

The following rules of construction shall be applicable for all purposes of the Plan unless the context clearly requires otherwise:

 

(a) The terms “include,” “including,” and similar terms shall be construed as if followed by the phrase “without being limited to.”

 

(b) Words of masculine, feminine, or neutral gender shall mean and include the correlative words of the other genders, and words importing the singular number shall mean and include the plural number, and vice-versa.

 

(c) All article, section, and exhibit or appendix captions are used for convenience and reference only, and in way define, limit, or describe the scope or intent of, or in any way affect, any such article, section, exhibit, or appendix.

 

 

The following Administrative Claims, Priority Tax Claims and United States Trustee Fees are Unimpaired under the Plan and will be treated as follows:

 

 

Administrative Claims. Administrative Claims are Claims constituting a cost or expense of the administration of the Case allowed under Sections 503 or 507(a)(2) of the Code. Such Claims include any actual and necessary costs and expenses of preserving the Estate of the Debtor, any actual and necessary costs and expenses of operating the business of the Debtor, any indebtedness or obligations incurred or assumed by the Debtor in connection with the conduct of its business, including, without limitation, for the acquisition or lease of property or an interest in property or the rendition of services, all compensation and reimbursement of expenses to the extent allowed by the Court under Section 328, 330, or 503 of the Code, all costs associated with the cure of any executory contracts and unexpired leases between the Debtor and any Person, and any fees or charges assessed against the Estate of the Debtor under Section 1930 of title 28 of the United States Code.

 

Except to the extent that any entity entitled to payment of any Allowed Administrative Claim agrees to a different treatment, each holder of an Allowed Administrative Claim shall receive Cash in an amount equal to such Allowed Administrative Claim on the later of the Effective Date and the date such Administrative Claim becomes an Allowed Administrative Claim by Final Order, or as soon thereafter as is reasonably practicable, unless the holder of such Allowed Administrative Claim agrees in writing to different treatment.

 

 

 

Compensation of professionals and reimbursement of expenses incurred by Professionals are Administrative Claims pursuant to Sections 503(b)(2) of the Code (the “Professional Fees and Expenses Claims”). All payments to Professionals for Professional Fees and Expenses Claims incurred prior to the Effective Date will be made in accordance with the procedures established by the Code, the Rules and the Court relating to the payment of final compensation for services rendered and reimbursement of expenses. The Court will review and determine all applications for compensation for services rendered and reimbursement of expenses.

 

All entities seeking an award by the Court of Professional Fees and Expenses prior to the Effective Date shall file their respective final applications for allowance of compensation for services rendered and reimbursement of expenses pursuant to Sections 328 or 330 of the Code, as applicable, and Rule 2016, by the date as may be fixed by the Court.

 

The time for filing objections to applications for allowance and payment of Professional Fees and Expenses, and the date and time for a hearing in respect of such applications and the related objections, if any, shall be set forth in the Confirmation Order or other order of the Court.

 

 

Except to the extent that a holder of an Allowed Priority Tax Claim under Section 507(a)(8) of the Code has been paid by the Debtor prior to the Effective Date or agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall receive Cash in an amount equal to such Allowed 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 reasonably practicable.

 

C. United States Trustee Fees

 

The Debtor shall pay the United States Trustee the appropriate sum required pursuant to 28 U.S.C. §1930(a)(6) on the Effective Date, and simultaneously provide to the United States Trustee an appropriate Affidavit indicating cash Disbursements for all relevant periods. After the Effective Date, the Liquidating Agent shall pay the United States Trustee the appropriate sum required pursuant to 28 U.S.C. §1930(a)(6) for post Effective Date periods within the time periods set forth in 28 U.S.C. §1930(a)(6), until the earlier of the closing of this Case by the issuance of a Final Decree by the Court, or upon entry of an order of this Court dismissing this Case, or converting this Case to another chapter under the Code, and the Liquidating Agent shall provide to the United States Trustee upon the payment of each post Effective Date payment an appropriate affidavit indicating disbursement for the relevant periods.

 

 

 

A.             Generally.

 

Pursuant to Section 1122 of the Bankruptcy Code, set forth below is a designation of the Classes of Claims and Equity Interests in the Estate. A Claim or Interest is placed in a particular Class only to the extent that such Claim or Interest is an Allowed Claim or Interest in that Class and such Claim or Interest has not been paid, released, or otherwise settled or paid prior to the Effective Date. In accordance with Section 1 123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax Claims of the kinds specified in Sections 507(a) (2) and 507(a)(8) of the Bankruptcy Code have not been classified, are deemed not to be Impaired and are treated as set forth in Article II above.

 

B.             Classification.

 

For purposes of this Plan, the Classes of Claims and Equity Interests against or in the Debtor shall be as follows:

 

                                           Class 1:Allowed Priority Claims

 

                                           Class 2:Allowed Secured Professional Fee Claim

 

                                           Class 3:Allowed Other Secured Claims

 

                                           Class 4:Allowed Unsecured Claims

 

                                           Class 5:Allowed Late-Filed Claims

 

                                           Class 6:Allowed Equity Interests

 

Class 6 is Impaired under the Plan and is, therefore, entitled to vote on the Plan.

 

 

 

(b)

Treatment. Each holder of an Allowed Priority Claim shall receive, in full satisfaction, release and exchange for such Claim, Cash in an amount equal to the amount of such Allowed Priority Claim on the later of the Effective Date and the date such Priority Claim becomes an Allowed Priority Claim, or as soon thereafter as is reasonably practicable

 

 

(b)

Treatment. Pursuant to Bankruptcy Court Order dated August 15, 2007, the Allowed Class 2 Secured Professional Fee Claim has been resolved and paid in full and no further Distribution will be made to Cooper under the Plan. All liens, security interests and administrative claims granted by the Debtor to Cooper in respect solely of Assets of the Debtor’s Estate under and pursuant to the terms of the Cooper Engagement Letter or otherwise, have been forever released and discharged by Order dated August 15, 2007. The stock of the Debtor that had been held by Cooper was transferred to AMCAP’s counsel pursuant to the terms of the August 15, 2007 Order. As of the Effective Date of the Plan, the stock shall be transferred to the Liquidating Agent, to hold pending further order of the Court, subject to the claim of lien asserted by SunTrust and disputed by AMCAP.

 

 

 

Class 3A is comprised of the holders of TSB Director Notes, if and to the extent that such Claims are allowed.

 

 

Class 3B is comprised of the holders of Director Notes, if and to the extent that such Claims are allowed.

 

 

Class 3C is comprised of the holder of the Burstein Past Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3D is comprised of the holder of the Burstein Future Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3E is comprised of the holder of the Cook Past Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3F is comprised of the holder of the Cook Future Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3G is comprised of the holder of the Vasquez Past Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3H is comprised of the holder of the Brierley Past Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3I is comprised of the holder of the Brierley Future Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3J is comprised of the holder of the Sanders Past Compensation Note, if and to the extent that such Claim is allowed.

 

 

Class 3K is comprised of the holder of the Sanders Future Compensation Note, if and to the extent that such Claim is allowed.

 

 

 

Class 3L is comprised of the holder of an Allowed Other Secured Claim With a Lien Against the Judgment, other than an Allowed Class 3A, 3B, 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J and 3K Claim, if and to the extent that any such Claims are allowed.

 

 

 

Class 3M is comprised of each holder of an Allowed Other Secured Claim with Liens against Collateral, other than the Judgment.

 

 

(b)

Treatment. Each Allowed Late Filed Claim against the Debtor shall be paid in full, in Cash with Post-Petition Interest, from Available Cash on the later of: (i) the Effective Date; or (ii) the date of a Final Order allowing such Class 5 Late-Filed Claim, provided however, that no Distribution shall be made to holders of Allowed Late-Filed Claims in this Class 5 unless and until all Allowed Administrative Claims, all Allowed Post-Confirmation Administrative Claims, all Allowed Priority Tax Claims and all Allowed Claims in Classes 1 through 4 have been paid in full, reserved or otherwise resolved or included in or accounted for in the Distribution at issue.

 

 

(a)	Description. Class 6 consists of the holders of Allowed Equity Interests

 

(b)

Treatment. Each holder of an Allowed Equity Interest as of the Petition Date shall receive Distributions on a pro rata basis with the holders of all such Allowed Equity Interests in this Class 6 (however the distribution computation shall be adjusted for the Initial Equity Dividend and any other interim distribution by Debtor to or on behalf of TFC such that the cumulative distributions to allowed Class 6 claimants will be pro rata). The Distributions to the holders of Allowed Equity Interests hereunder shall be made on each Distribution Date and shall be made from Available Cash, provided however, that, subject to the Initial Equity Dividend, no Distribution shall be made to holders of Allowed Equity Interests in this Class 6 unless and until all Allowed Administrative Claims, all Allowed Post-Confirmation Administrative Claims, all Allowed Priority Tax Claims and all Allowed Claims in Classes 1 through 5 have been paid in full, reserved or otherwise resolved or included in or accounted for in the Distribution at issue.

 

 

 

 

Each holder of a Claim or Equity Interest in an Impaired Class of Claims or Equity Interests that is entitled to vote on the Plan pursuant to the Code shall be entitled to vote separately to accept or reject the Plan as provided in such order as may be entered by the Court establishing certain procedures with respect to the solicitation and tabulation of votes to accept or reject the Plan, or any other order or orders of the Court.

 

 

If all of the applicable requirements of Section 1129(a) of the Bankruptcy Code are met other than Paragraph 8 of said such section which requires that all Impaired Classes accept the Plan, the Debtor will then seek confirmation pursuant to Section 1129(b) of the Bankruptcy Code, which is commonly referred to as the “cram down” provision. For the purposes of seeking Confirmation under the cram down provision of the Bankruptcy Code, should that alternative means of Confirmation prove to be necessary, the Debtor reserves the right to modify or vary the terms of the Plan with regard to the Allowed Claims of any rejecting classes, so as to comply with the requirements of Section 1129(b), subject to the provisions of Section 1127 of the Code.

 

(a)

Subject to Rule 9010, and except as otherwise provided in Section 5.03 of the Plan or court order, all Distributions under the Plan shall be made by the Liquidating Agent to the holder of each Allowed Claim at the address of such holder as listed on the Schedules as of the Distribution Record Date unless the Debtor or the Liquidating Agent has been notified in writing of a change of address, including by the filing of a Proof of Claim by such holder that provides an address different from the address reflected on the Schedules.

 

(b)	Any payment of Cash made by the Liquidating Agent pursuant to the Plan shall be made by check drawn on a domestic bank or by wire transfer.

 

(c)	Any payment or Distribution required to be made under the Plan on a day other than a Business Day shall be made on the next succeeding Business Day.

 

(d)	No payment of Cash less than one hundred dollars ($100.00) shall be made by the Liquidating Agent to any holder of a Claim.

 

(e)

No fractional Distributions shall be distributed pursuant to the Plan. When any distribution on account of an Allowed Claim pursuant to the Plan would otherwise result in the payment of an amount that is not a whole number, the actual distribution shall be rounded as follows: (a) fractions of $0.50 or greater shall be rounded to the next higher whole number and (b) fractions of less than $0.50 shall be rounded to the next lower whole number.

 

(f)	Unclaimed Distributions

 

(i) Any Distributions of Cash by the Liquidating Agent under the Plan that are unclaimed by a holder of an Allowed Claim for a period of ninety (90) days after the Final Distribution Date shall be paid over by the Liquidating Agent to the Court, in accordance with Local Rule of Bankruptcy Procedure 301 1-1(B). In no event does the Liquidating Agent have any obligation to investigate or attempt to locate the holders of such claims.

 

 

(ii) Any Distributions of Cash by the Liquidating Agent made to holders of Allowed Class 6 Equity Interests under this Plan which are unclaimed for a period of ninety (90) days shall be redistributed pro-rata to all holders of Allowed Class 6 Equity Interests under this Plan and the holders to whom the distributions were originally made shall be forever barred from claiming such Cash.

 

(g)

Unless otherwise provided herein, all Initial Distributions and deliveries to be made on the Effective Date shall be made on the Initial Distribution Date. Notwithstanding the foregoing, subsequent Distributions shall be made on each Subsequent Distribution Date in accordance with the terms set forth in the Plan unless the Liquidating Agent determines that the amounts to be distributed are unreasonably small in comparison to the cost of making such distributions.

 

(h)

At the close of business on the Distribution Record Date, the claims register shall be closed, and there shall be no further changes in the record holders of any Claims and holders of Equity Interests. Except as to testamentary transfers only, the Liquidating Agent shall have no obligation to recognize any transfer of any Claims or Equity Interests occurring after the Distribution Record Date; provided, however, that the foregoing will not be deemed to prohibit the sale or transfer of any Claim or Equity Interest subsequent to the Distribution Record Date and prior to the Effective Date. Unless otherwise provided in this Plan, the Liquidating Agent shall instead be entitled to recognize and deal for all purposes under the Plan with only those record holders as of the close of business on the Distribution Record Date.

 

On the Initial Distribution Date and each Subsequent Distribution Date, the Liquidating Agent, shall reserve the Disputed Claims Reserve from the Distributions to be made on such dates to the holders of Allowed Claims, an amount equal to one-hundred percent (100%) of the Distributions to which holders of Disputed Claims and Disputed Equity Interests would be entitled under the Plan as of such dates if such Disputed Claims and Equity Interests were Allowed Claims and Allowed Equity Interest in their Disputed Claim and Equity Interest Amounts.

 

Cash or instruments in the Disputed Claims Reserve shall be held in trust by the Liquidating Agent for the benefit of the potential recipients of such Cash or instruments and shall not constitute property of the Liquidating Debtor’s Estate or the Liquidating Agent.

 

 

The holder of a Disputed Claim that becomes an Allowed Claim shall receive distributions of Cash and any other consideration from the Disputed Claims Reserve from the Liquidating Agent within ten (10) business days following the date on which such Disputed Claim becomes an Allowed Claim pursuant to a Final Order. Such distributions shall be made in accordance with the Plan.

 

To the extent that a Disputed Claim or Interest is not Allowed or becomes an Allowed Claim or Interest in an amount less than the Disputed Claim or Interest Amount, the excess of Cash and any other consideration in the Disputed Claims Reserve over the amount of Cash and any other consideration actually distributed on account of such Disputed Claim or Interest shall be redistributed to the balance of the holders of Allowed Equity Interests.

Except as otherwise ordered by the Court, the amount of any Reasonable expenses incurred by the Liquidating Agent on or after the Effective Date with respect to the Disputed Claims Reserve, including the Liquidating Agent’s fees and costs as well as the fees and costs of his Professionals and his staff, shall be paid from the Litigation Reserve.

 

5.05 Procedures for Allowance or Disallowance of Disputed Claims or Equity Interests

 

(a)

Objections to and Resolution of Administrative Claims and Claims

 

Except as to applications for allowance of compensation and reimbursement of expenses under Section 330 of the Code, the Liquidating Agent shall have the sole right to make and file objections to Claims and Equity Interests subsequent to the Effective Date. All objections shall be litigated to Final Order; provided, however, that following the Effective Date, the Liquidating Agent shall have the sole authority to compromise, settle, otherwise resolve or withdraw any of his objections, subject to prior notice to parties in interest listed on the Post Confirmation Service List and approval by the Court. Unless otherwise ordered by the Court, the Liquidating Agent shall file all objections to Claims and Equity Interests and serve such objections upon the holder of the Claim or Equity Interest as to which the objection is made as soon as is practicable, but in no event later than the Claim Objection Deadline or such later date as may be approved by the Court. All costs and expenses relating to the investigation and prosecution of Disputed Claims or Equity Interests from and after the Effective Date, including the Reasonable fees and costs of the Liquidating Agent, his Professionals, and his staff shall be paid from the Litigation Reserve.

 

 

Notwithstanding any other provision of the Plan, if any portion of a Claim or Equity Interest is disputed, the disputed portion of such Claim or Equity Interest shall be treated as a Disputed Claim or Equity Interest for purposes of this Plan, and no payment or distribution provided under the Plan shall be made on account of the disputed portion of such Claim unless and until such Disputed Claim or Equity Interest becomes an Allowed Claim or Equity Interest (in whole or in part).

 

 

All Claims and Equity Interests held by Persons against whom the Liquidating Agent or any other interested party has commenced a proceeding asserting a cause of action under Sections 542, 543, 544, 545, 547, 548, 549, and/or 550 of the Code, shall be deemed “disallowed” Claims and Equity Interests pursuant to Section 502(d) of the Code and holders of such Claims or Equity Interests shall not be entitled to vote to accept or reject the Plan, unless the Court enters an order estimating the Claim or Equity Interests for voting purposes under Section 502(c).

 

 

Except as otherwise provided in this Plan, the Liquidating Agent will act as disbursing agent under the Plan with respect to all Distributions to holders of Claims and Equity Interests, and will make all Distributions required to be distributed under the applicable provisions of the Plan, provided however that the Debtor shall make the Initial Distribution under the Plan. The Liquidating Agent may employ or contract with other entities to assist in or make the Distributions required by the Plan (including a registrar) provided that the Liquidating Agent may not hire professionals which are representing or have represented the Debtor or AMCAP (unless SunTrust otherwise consents). The Liquidating Agent shall post a bond in favor of the Liquidating Debtor’s Estate in accordance with Section 8.03(h) of the Plan. The Liquidating Agent shall hold all reserves and accounts pursuant to the Plan and the Disputed Claims Reserve. In the event there is a dispute regarding the reasonableness of the Liquidating Agent’s compensation as Disbursing Agent or the terms of the Liquidating Agent’s employment of any person under this provision, the Liquidating Agent is entitled to file a motion with the Bankruptcy Court for approval. .

 

 

The Liquidating Agent may, but shall not be required to, set off (pursuant to the provisions of Section 553 of the Code or other applicable law) against or recoup from any Claim or Equity Interest and the payments to be made pursuant to the Plan in respect of such Claim or Equity Interest, any Claims of any nature whatsoever that the Debtor may have against the claimant, but neither the failure to do so nor the allowance of any Claim or Equity Interest hereunder, except with respect to a Claim as to which no objection has been interposed by the Claim Objection Deadline, shall constitute a waiver or release by the Liquidating Agent of any setoff or recoupment right it may have against the holder of such Claim or Equity Interest.

 

 

 

To the extent that any Allowed Claim entitled to a Distribution under the Plan is comprised of indebtedness and accrued but unpaid prepetition interest thereon, such distribution shall be allocated to the principal amount (as determined for federal income tax purposes) of the Claim first, and then to accrued but unpaid prepetition interest.

 

 

 

Notwithstanding that the Allowed Amount of any particular Disputed Claim is reconsidered under the applicable provisions of the Code and Rules or is Allowed in an amount for which after application of the payment priorities established by the Plan there is insufficient value to provide a recovery equal to that received by other holders of Allowed Claims in the respective Class, no Claim holder shall have recourse against the Liquidating Agent, his staff or any of their respective professionals, consultants, or their respective successors or assigns, or any of their respective property. However, nothing in the Plan shall modify any right of a holder of a Claim under Section 502(j) of the Code.

 

 

A Claim may be amended only as agreed upon by the Liquidating Agent and the holder of such Claim, or as otherwise permitted by the Court, the Rules or applicable law.

 

 

Unless expressly provided in the Plan, the Confirmation Order, or any contract, instrument, release, settlement, or other agreement entered into in connection with the Plan or required by applicable law, post-petition interest shall not accrue on or after the Petition Date on account of any Claim.

 

 

 

 

In this case, the Debtor will not make a determination as to assumption or rejection of its Executory Contracts prior to the Confirmation Hearing. Instead, within sixty (60) days after the Effective Date (unless extended by order of the Bankruptcy Court), the Liquidating Agent shall determine whether or not to assume or reject each of the Debtor’s Executory Contracts and file and serve an appropriate motion seeking assumption or rejection of each of the Debtor’s Executory Contracts.

 

 

 

Upon confirmation of the Plan, and in accordance with the Confirmation Order, the Debtor (with respect to the Initial Distribution and payment of trustee fees) or Liquidating Agent, with respect to all other matters will be authorized to take all necessary steps, and perform all necessary acts, to consummate the terms and conditions of the Plan. In addition to the provisions set forth elsewhere in the Plan, the following shall constitute the means for implementation of the Plan.

 

 

On the Effective Date of the Plan, (i) the Liquidating Debtor’s Assets shall vest in, and be transferred by the Debtor to, the Liquidating Debtor’s Estate, and the Liquidating Agent shall constitute, be appointed as and be deemed a representative of the Debtor’s Estate pursuant to and in accordance with the terms of Section 1123 (b)(3)(B) of the Bankruptcy Code solely for the benefit of all holders of Allowed Claims and Allowed Equity Interests under the Plan with respect to, among other things, any Litigation Claims, and (ii) the Liquidating Debtor’s Estate, through the Liquidating Agent, is and shall be authorized and appointed to investigate, prosecute, enforce, pursue and settle, and continue to investigate, prosecute, enforce, pursue and settle, the liquidation of such Liquidating Debtor’s Assets, including as a representative of the Liquidating Debtor’s Estate pursuant to and in accordance with the terms of Section 1123 (b)(3)(B) of the Bankruptcy Code solely for the benefit of all holders of Allowed Claims and Allowed Equity Interests under the Plan.

 

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE VESTING IN AND TRANSFER OF THE LIQUIDATING DEBTOR’S ASSETS TO THE LIQUIDATING DEBTOR’S ESTATE SHALL BE FREE AND CLEAR OF ANY AND ALL LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS OF ANY KIND WHATSOEVER, EXCEPT AS EXPRESSLY PRESERVED AND PROVIDED FOR IN THE PLAN AND THE CONFIRMATION ORDER.

 

 

The Plan contemplates the liquidation of all Assets of the Estate for the benefit of the holders of Allowed Claims and Allowed Equity Interests as set forth above. A portion of the Assets sufficient to satisfy all claims has already been reduced to Cash and will be available for Distribution to holders of Allowed Claims and Allowed Equity Interests, all in accordance with the Plan. The Liquidating Debtor’s Estate is a mechanism for the liquidation and monetization of the Liquidating Debtor’s Assets. The Liquidating Debtor’s Estate will be utilized to hold the Liquidating Debtor’s Assets until they can be liquidated and monetized in an orderly fashion. All Distributions shall be made from the Available Cash in accordance with the terms of the

 

 

Plan. The Liquidating Debtor’s Estate will not continue or engage in the conduct of any trade or business, except to the extent necessary to accomplish the liquidation and distribution of Liquidating Debtor’s Assets.

 

From and after the Effective Date, the Liquidating Debtor’s Estate, though the Liquidating Agent, shall expeditiously seek to collect, liquidate, sell and/or reduce to Cash all Liquidating Debtor’s Assets, including, without limitation, through pursuit of the Litigation Claims. The Plan will be funded with (a) Cash on hand on the Effective Date, and (b) funds added to Cash after the Effective Date from, among other things, the liquidation of the Liquidating Debtor’s Assets, including, among other things, prosecution of the Litigation Claims as the Liquidating Agent deems appropriate .

 

On the Effective Date, the Debtor shall be authorized to pay from Available Cash all Allowed Administrative Expense Claims, all Allowed Priority Tax Claims and all fees of the Office of the United States Trustee all in accordance with the terms of the Plan. In addition, on the Effective Date, the Debtor and the Liquidating Agent shall be authorized to reserve sufficient Cash from Available Cash for all Claims in Classes 1 through 5 and make the Initial Distribution to holders of Allowed Class 6 Equity Interests in an amount not less than the Initial Equity Dividend.

 

The Liquidating Agent shall be primarily responsible for making Distributions under the Plan. In making Distributions under the Plan, the Liquidating Agent will comply with all withholding and reporting requirements imposed by federal, state or local taxing authorities. All Distributions pursuant to the Plan will be subject to all applicable withholding and reporting requirements.

 

The Liquidating Debtor’s Estate may require any Creditor with an Allowed Claim or holder of an Allowed Equity Interest entitled to a Distribution under the Plan to furnish its, his or her employer or taxpayer identification number (the “TIN”) assigned by the Internal Revenue Service. Any Distribution under the Plan may be conditioned on the receipt of such TIN. If any such Creditor or holder of an Interest entitled to a Distribution hereunder fails to provide a requested TIN within forty-five (45) days after the request thereof, then such failure shall be deemed to be a waiver of such Creditor’s interest or Interest holder’s interest in any future Distributions, including the right to receive any future Distributions.

 

On the Effective Date, all documents described in the Plan and all other agreements entered into or documents issued pursuant to the Plan shall become effective and binding upon the parties thereto in accordance with their respective terms and conditions and shall be deemed to become effective simultaneously.

 

The Liquidating Agent shall not be responsible for the preparation or filing of any reports, statements or other documents required to be filed by the Debtor under any state or federal securities laws, including the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

 

 

On the Effective Date, all matters provided for under the Plan that would otherwise require approval of the stockholders or directors of one or more of the Debtor or its successors in interest under the Plan, including, without limitation, the filing of articles of dissolution, shall be deemed to have occurred and shall be in full force and effect from and after the Effective Date pursuant to the General Corporation Law of the State of Florida, without any requirement of further action by the stockholders or directors of the Debtor.

 

Entry of the Confirmation Order shall constitute approval of the Plan Documents to the extent they are disclosed and attached as exhibits to the Plan, and all such transactions, subject to the occurrence of the Effective Date.

 

On the Effective Date, the Equity Interests shall be canceled and extinguished and the holders thereof shall not retain any rights in respect of such Equity Interests other than the right to receive Distributions pursuant to the Plan. Such Distribution rights shall not be transferable after the Effective Date, except that they may be assigned or transferred by will, intestate succession or operation of law. On the Effective Date, the Debtor shall file with the Securities and Exchange Commission a Form 8-K disclosing the effectiveness of the Plan and the liquidation of the Debtor and a Form 15 for each security of the Debtor registered pursuant to Section 12 or 15 of the Securities Exchange Act of 1934, as amended.

 

Any acceleration, vesting or similar change of control rights of any Person under employment, benefit or other arrangements with the Debtor that could otherwise be triggered by the entry of the Confirmation Order or the consummation of the Plan shall be deemed to be waived and of no force or effect.

 

The Debtor shall continue to operate as a Debtor-in-Possession in the ordinary course, consistent with past practice, subject to the supervision of the Court and pursuant to the Code and the Rules during the period from the Confirmation Date through and until the Effective Date, subject to the terms of the SunTrust Settlement Agreement, and any obligation incurred by the Debtor during that period shall constitute an Administrative Claim.

All injunctions or stays applicable to the Assets of the Debtor’s Estate, whether pursuant to Section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect with respect to the Liquidating Debtor’s Estate and the Liquidating Debtor’s Assets. In addition, the Liquidating Agent shall have the right to invoke the provisions of the Bankruptcy Code made applicable by the Plan to the Liquidating Debtor’s Estate and all of the Bankruptcy Rules until the entry of a Final Decree closing this Chapter 11 Case.

 

As of the Effective Date, pursuant to Section 1 123(b)(3)(B) of the Code, any and all Litigation Claims accruing to the Debtor and Debtor-in-Possession, including, without limitation, Litigation Claims, including under Sections 510, 542, 544, 545, 547, 548, 549, 550, 551 and 553 of the Code, shall become vested assets of the Liquidating Debtor’s Estate, and the Liquidating Agent shall have the authority to commence and prosecute such Litigation Claims for the benefit of the Liquidating Debtor’s Estate and holders of Allowed Claims and Allowed Equity Interests. The Liquidating Agent shall be entitled to pursue Litigation Claims in his/her own name or the name of the Debtor.

 

The Debtor and the Claims Examiner are currently investigating potential Litigation Claims on behalf of the Debtor’s Estate. The potential Litigation Claims, in addition to those set forth herein, include, but are not limited to, those claims listed on Exhibit C annexed to the Disclosure Statement.

 

In addition to the above, there may be numerous Litigation Claims which currently exist or may subsequently arise that are not set forth specifically herein because the facts upon which such Litigation Claims are not fully or currently known by the Debtor or the Claims Examiner. The failure to list any such Litigation Claim is not intended to limit the rights of the Liquidating Agent to pursue such Litigation Claims at such time as the facts giving rise thereto become fully known.

 

After the Effective Date, the Liquidating Agent shall have the sole authority to compromise and settle, otherwise resolve, discontinue, abandon or dismiss all such Litigation Claims with approval of the Court.

 

All causes of action shall remain the property of the Liquidating Debtor’s Estate after the Effective Date of the Plan, and, if pursued and any recovery is ultimately realized, the proceeds of any such recovery would ultimately become property of the estate and disbursed pursuant to the terms of the Plan. Inasmuch as the Debtor’s investigations of such claims are in its initial phase, the Debtor is unable to provide any meaningful estimate of the total amount that could be recovered and/or avoided.

 

7.10 The Liquidating Agent and the Professionals he retains in this case are limited in their ability to prosecute and defend the Litigation Claims by the amount of the Litigation Reserve to be established under the Plan and approved by the Bankruptcy Court. Neither the Liquidating Agent nor the Professionals he retains in this case has any obligation to prosecute or defend any Litigation Claim in the absence of available funds in the Litigation Reserve. The Liquidating Agent and his Professionals shall file a motion to withdraw upon at least 30 days notice with respect to his obligations pursuant to Section 8.04 herein. The Liquidating Agent and his Professionals are not obligated to prosecute or defend any Litigation Claim on a contingency or non-compensated basis. Discharge of Debtor

 

 

The Debtor shall not be afforded a discharge under Section 1141 under the Code, as this Plan provides for liquidation of all or substantially all of the Debtor’s assets and the Debtor shall not transact or otherwise be engaged in business following the Effective Date.

 

 

Unless otherwise provided herein, all injunctions or stays applicable to the Assets of the Estate, whether pursuant to Section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, will remain in full force and effect with respect to the Liquidating Debtor’s Estate. In addition, the Liquidating Agent shall have the right to invoke the provisions of the Bankruptcy Code made applicable by the Plan to the Liquidating Debtor’s Estate and all of the Bankruptcy Rules until the entry of a final decree closing this Chapter 11 Case.

 

Except as otherwise expressly provided in the Plan, the Confirmation Order or a separate order of the Court, all Persons who have held, hold or may hold Claims against or Equity Interests in the Debtor, are permanently enjoined, on and after the Effective Date, from (i) commencing or continuing in any manner any action or other proceeding of any kind with respect to any such Claim or Equity Interest against the Liquidating Debtor’s Estate or Liquidating Agent, (ii) enforcing, attaching, collecting or recovering by any manner or means of any judgment, award, decree or order against the Liquidating Debtor’s Estate or the Liquidating Agent on account of any such Claim or Equity Interest, (iii) creating, perfecting or enforcing any Lien or asserting control of any kind against the Liquidating Debtor’s Estate or the Liquidating Agent or against the property or interests in property of the Liquidating Debtor’s Estate or the Liquidating Agent on account of any such Claim or Equity Interest and (iv) asserting any right of setoff, subrogation or recoupment of any kind against any obligation due from the Liquidating Debtor’s Estate or the Liquidating Agent or against the property or interests in property of the Liquidating Debtor’s Estate or the Liquidating Agent on account of any such Claim or Equity Interest. Such injunctions shall extend to the Liquidating Debtor’s Estate and the Liquidating Agent and their respective properties and interests in property.

 

 

Upon the entry of a Confirmation Order with respect to the Plan, all holders of Claims and Equity Interests and other parties in interest, along with their respective present employees, agents, officers, directors, or principals, shall be enjoined from taking any actions to interfere with the implementation or consummation of the Plan, except with respect to actions any such entity may take in connection with the pursuit of appellate rights.

 

 

Unless any of the Litigation Claims are expressly waived, relinquished, exculpated, released, compromised or settled by Final Order of the Bankruptcy Court, all such Litigation Claims are expressly reserved and preserved for later adjudication and, therefore, no preclusion doctrine, including without limitation, the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or otherwise) or laches shall apply to such Litigation Claims upon or after Confirmation or consummation of the Plan.

 

 

 

 

        8.01 Appointment of Claims Examiner and Liquidating Agent

 

Jeffrey H. Beck was appointed as the Claims Examiner by Final Order of the Bankruptcy Court dated October 29, 2007 and shall be appointed as the Liquidating Agent upon the Effective Date of the Plan.

 

Prior to the Confirmation Date, the Claims Examiner shall have full authority to (a) review and investigate Claims against the Estate filed by an Insider, or an Affiliate of such Insider and (b) review and negotiate terms of the Plan.

 

 

Each of the Claims Examiner and the Liquidating Agent shall be (a) compensated at his normal hourly rates; (b) be entitled to hire professionals to assist him in his duties under the Order of his appointment and under the Plan, but may not hire professionals that are representing or have represented the Debtor, AMCAP, or any other interest in the cases (unless pursuant to prior written consent of SunTrust); and (c) entitled to recovery of his Reasonable fees and costs, including the fees and costs of his Professionals and staff provided that the fees and costs incurred as Claims Examiner and as Liquidating Agent are allocated accordingly between the respective estates of the Debtor and AMCAP.

 

8.03 Duties and Responsibilities of the Liquidating Agent Upon the Effective Date of the Plan:

 

 

 

(d)

The Liquidating Agent shall become the exclusive “representative of the estate” under Sections 1 123(b)(3)(B) and 105, for purposes of any such Litigation Claims, including adversary proceedings nos. 07-1587, 07-1588 and 07-01586. As representative of the estate, the Liquidating Agent shall have the full and exclusive authority to prosecute or defend, as appropriate, any action constituting property of either Debtor's Estate, through final judgment, any appeals deemed necessary and appropriate by the Liquidating Agent and collection; provided, however, that the Liquidating Agent shall be authorized at any point in any litigation (i) to enter into such settlements as the Liquidating Agent deems to be in the best interest of creditors, subject to Court approval after notice and a hearing in accordance with Bankruptcy Rule 9019; or (ii) to dismiss and/or decide not to prosecute any such litigation if the Liquidating Agent deems such action to be in the best interest of Creditors, subject to prior notice to parties listed on the Post Confirmation Service List and prior approval by the Court; or (iii) to sell such Litigation Claims (to any party other than the Debtor), subject to prior notice to parties listed on the Post Confirmation Service List and prior approval by the Court.

 

(e)	The Liquidating Agent shall have all the power and authority of a debtor in possession under the Bankruptcy Code including, without limitation, the power to abandon or administer property of the Debtor’s estate and to take discovery of any entity (including Rule 2004 exams).

 

(f)	The Liquidating Agent may consult with his Professionals and shall not be liable for any action taken or omitted to be taken by him in accordance with the advice of his Professionals.

 

(g)

As of the Effective Date, the Liquidating Agent shall be authorized to prosecute any pending, and to file any appropriate, Litigation Claims. As of the Effective Date, the Liquidating Agent shall be authorized to prosecute any Litigation Claim in the Debtor’s name or his own name for the benefit of the holders of Allowed Claims and Allowed Equity Interests under the Plan;

 

 

(i)

The Liquidating Agent, his Professionals and staff shall be entitled to recovery of his Reasonable fees and costs provided that the fees are allocated accordingly between the respective estates of the Debtor and AMCAP. The Liquidating Agent, upon receipt of invoices from Professionals retained by the Liquidating Agent on a monthly basis shall pay forthwith the amounts due from the Litigation Reserve, which payment shall be in an amount equal to 90% of the fees and 100% of the expenses sought, provided however, that such Professional shall file fee applications with the Court no less frequently than every 120 days seeking approval of fees and expenses by the Court including amounts paid on a monthly basis. The Bankruptcy Court shall retain jurisdiction to allow or disallow Post-Confirmation Administrative Claims The invoices for services rendered and out-of-pocket expenses incurred which are to be submitted pursuant to the terms of this paragraph need not be in the format required by the Local Rules of the Court or United States Trustee's Guidelines in connection therewith, but shall be sufficiently detailed to identify the hours worked, the rates charged and the work performed;

 

(j)

On the Effective Date, or as soon thereafter as possible, the Liquidating Agent shall establish the Disputed Claims Reserve and shall segregate the funds constituting the Disputed Claims Reserve. On the Effective Date, or as soon thereafter as possible, and from time to time thereafter, the Liquidating Agent shall transfer to the Disputed Claim Reserve the pro-rata amount of any Distribution to holders of Allowed Claims allocable to Disputed Claims;

 

(k)

If a Disputed Claim is allowed, in part or in full, then the Liquidating Agent shall, from Cash or instruments theretofore deposited into the Disputed Claims Reserve allocable to such Claim, distribute to the holder of any such Claim an amount equal to such Claimant’s Pro-Rata Share, based on such Allowed Claim, of all Distributions previously made to holders of Allowed Claims. The balance, if any, of the Cash or instruments reserved for such Disputed Claim shall be treated as provided for in Section 5.04 of the Plan;

 

(l)	At such time as Final Distributions have been made, the Liquidating Agent is authorized and directed to file a final accounting with the Court, together with a final report; and

 

 

 

 

The Liquidating Agent shall serve until (i) such time as the entry of a final decree closing this Case, at which time the Liquidating Agent and any professionals engaged by him shall be discharged and shall have no further responsibilities under the Plan or (ii) after notice and hearing and upon the entry of a final order authorizing the Liquidating Agent and his Professionals to withdraw.

 

 

The Liquidating Debtor’s Estate shall indemnify and hold the Liquidating Agent, his Professionals and staff harmless from and against any damages, costs, claims and other liabilities incurred in connection with their respective duties and responsibilities hereunder, other than those damages, costs, claims and other liabilities that result from the Liquidating Agent’s or his Professional’s gross negligence or willful misconduct. Without limiting the foregoing, the Debtor’s Estate shall indemnify and hold the Liquidating Agent, his Professionals and staff harmless from any claims incurred as a result of the Debtor’s or the Liquidating Debtor’s Estate’s failure to file reports, statements or other documents or take any other actions required to be taken under any state or federal securities laws, including the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

 

 

The Plan shall not be confirmed by the Court unless and until the following conditions shall have been satisfied or waived pursuant to Section 9.04 of the Plan:

 

The Confirmation Order shall include, among other things, a finding of fact that the Debtor, its respective officers and directors and its Professionals, and the Claims Examiner and his Professionals acted in good faith within the meaning of and with respect to all of the actions described in Section 1125(e) of the Code and are therefore not liable for the violation of any applicable law, rule or regulation governing such actions. Notwithstanding anything to the contrary in the Plan or Confirmation Order, the Court’s finding of good faith does not release the officers and directors of the Debtor from any liability for actions taken (or not taken) prior to the Petition Date;

 

 

 

 

(i)	The Confirmation Order shall have been entered (with no modification or amendment thereof), and there shall be no stay or injunction that would prevent the occurrence of the Effective Date;

 

(ii)	The United States Trustee Fees then due and owing shall have been paid in full; and

 

 

If each condition to the Effective Date specified in the Plan has not been satisfied or duly waived within ninety (90) days after the Confirmation Date, then upon the filing of a motion by the Debtor made before the time that all conditions have been satisfied or duly waived, the Confirmation Order will be vacated by the Court; provided, however, that notwithstanding the filing of such a motion, the Confirmation Order shall not be vacated if each of the conditions to the Effective Date is either satisfied or duly waived before the Court enters an order granting the relief requested in such motion. If the Confirmation Order is vacated, the Plan shall be deemed null and void in all respects, and the assumptions or rejections of executory contracts and unexpired leases as provided by the Plan, and nothing contained herein shall (1) constitute a waiver or release of any Litigation Claims by, or Claims against, the Debtor or (2) prejudice in any manner the rights of the Debtor.

 

 

The Debtor, and in the case of Section 9.01(ii) or (iii), the Claims Examiner, may waive one or more of the conditions precedent to confirmation of the Plan, or the condition precedent to effectiveness of the Plan set forth in Section 9.02 of the Plan. The Debtor may waive in writing one or more of the other conditions precedent to confirmation and effectiveness of the Plan, upon notice and hearing and a Final Order.

 

 

 

The Court shall have exclusive jurisdiction of all matters arising out of, and related to, the Case and the Plan pursuant to, and for the purposes of, Sections 105(a) and 1142 of the Code and for, among other things, the following purposes:

 

 

 

(b)	to determine any and all adversary proceedings, motions, applications and contested matters, and other litigated matters;

 

(c)

to hear and determine all Litigation Claims, including, without limitation, Litigation Claims commenced by the Debtor or any other party in interest with standing to do so, pursuant to Sections 505, 542, 543, 544, 545, 547, 548, 549, 550, 551, and 553 of the Code, collection matters related thereto, and settlements thereof;

 

(d)	to hear and determine any objections to or the allowance, classification, priority, compromise, or payments of any Administrative Claims or Claims or Equity Interests (including the validity and extent of any liens);

 

(e)	to ensure that Distributions to holders of Allowed Claims are accomplished as provided in the Plan;

 

(f)	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;

 

(g)	to issue such orders in aid of execution and consummation of the Plan, to the extent authorized by Section 1142 of the Code;

 

(h)	to consider any amendments to or modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in the Plan, or any order of the Court, including, without limitation, the Confirmation Order;

 

(i)	to hear and determine all applications for compensation and reimbursement of expenses of Professionals under Sections 330 and 331, of the Code;

 

(j)	to hear and determine disputes arising in connection with the interpretation, implementation or enforcement of the Plan;

 

(k)	to recover all Assets of the Debtor and Property of the Estate, wherever located;

 

(l)	to determine any Claim of or any liability to a governmental unit that may be asserted as a result of the transactions contemplated herein;

 

(m)	to enforce the Plan, the Confirmation Order and any other order, judgment, injunction or ruling entered or made in the Case, including, without limitation, the discharge, injunction, exculpation and releases provided for in the Plan;

 

 

(o)

to hear and determine matters concerning state, local and federal taxes in accordance with Sections 346, 505, and 1146 of the Code (including, but not limited to, an expedited determination under Section 505(b) of the Code of the tax liability of the Debtor for all taxable periods through the Final Distribution Date, for all taxable periods of the Debtor through the liquidation and dissolution of such entity);

 

(p)	to hear and determine any disputes regarding the fees and costs of the Liquidating Agent and his Professionals and any other Professionals seeking compensation;

 

(q)	to hear and determine any motions to compromise under Rule 9019 or otherwise;

 

(r)	to hear and determine any motion to sell assets;

 

(s)	to hear and determine any issues relating to the Liquidating Agent’s abandonment of assets;

 

(t)	to hear any other matter not inconsistent with the Code; and

 

 

 

         11.01 Effectuating Documents and Further Transactions

The Debtor or Liquidating Agent, as appropriate, is authorized to execute, deliver, file or record such contracts, instruments, releases and other agreements or documents and take such actions as may be necessary or appropriate to implement, effectuate and further evidence the terms and conditions of the Plan provided however, that the Debtor is not authorized to release its officers or directors for any actions (or inactions) taken prior to the Petition Date.

 

         11.02 Exemption from Transfer Taxes

 

Pursuant to Section 1146(a) of the Code, the issuance, transfer or exchange of notes, the making or assignment of any lease or sublease, or the making or delivery of any instrument of transfer under, in furtherance of, or in connection with the Plan, including, without limitation, any merger agreements or agreements of consolidation, deeds, bills of sale or assignments executed in connection with any of the transactions contemplated by the Plan, shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax.

 

 

 

The Debtor and the Liquidating Agent are authorized to request an expedited determination under Section 505(b) of the Code of the tax liability of the Debtor for state, federal or other taxes, for all taxable periods.

 

 

Subject to the occurrence of the Effective Date, neither the Debtor, SunTrust, the Liquidating Agent, the Claims Examiner, nor any of their respective members, officers, directors, agents, accountants, financial advisors, attorneys, employees, equity holders, partners, affiliates and representatives (the “Exculpated Parties”) shall have or incur any liability to any holder of a Claim or Equity Interest for any act or omission in connection with, related to, or arising out of, the Case, the Plan, the pursuit of confirmation of the Plan, the consummation of the Plan or the administration of the Plan or the property to be distributed under the Plan; provided, however, that the foregoing shall not operate as a waiver or release for (i) any express contractual obligation owing by any such Person, (ii) willful misconduct or gross negligence, and (iii) with respect to Professionals, liability arising from claims of professional negligence which shall be governed by the standard of care otherwise applicable to professional negligence claims under applicable non-bankruptcy law, and, in all respects, the Exculpated Parties shall be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under the Plan; provided further that nothing in the Plan shall, or shall be deemed to, release the Exculpated Parties, nor constitute a release of any claims the Estate may have against the Exculpated Parties arising out of conduct during the case or exculpate the Exculpated Parties with respect to, their respective obligations or covenants arising pursuant to the Plan; provided further that the foregoing shall not operate as a waiver or release of Claims by governmental entities arising under environmental laws.

 

 

 

 

From and after the Effective Date, the Debtor or the Liquidating Agent, as the case may be, shall, in the ordinary course of business and without the necessity for any approval by the Court, pay the reasonable fees and expenses of Professionals thereafter incurred by the Debtor or Liquidating Agent, including, without limitation, those fees and expenses incurred in connection with the implementation and consummation of the Plan, subject to the provisions of Section 8.03(i) of the Plan.

 

 

 

The Debtor shall be responsible for timely payment of United States Trustee Fees. After confirmation, the Debtor or the Liquidating Agent, as appropriate, shall file with the Court and serve on the United States Trustee a quarterly financial report regarding all income and disbursements, including all plan payments, for each quarter (or portion thereof) the Case remains open.

 

 

Alterations, amendments or modifications of the Plan may be proposed in writing by the Debtor at any time prior to the Confirmation Date in conformity with Section 1127(a) of the Code, provided that the Plan, as altered, amended or modified, satisfies the conditions of Sections 1122, 1123 and 1129 of the Code, and the Debtor shall have complied with Section 1125 of the Code. The Plan may be altered, amended or modified by the Debtor at any time after the Confirmation Date in conformity with Section 1127(b) of the Code, provided that the Plan, as altered, amended or modified, satisfies the requirements of Sections 1122 and 1123 of the Code and the Court, after notice and a hearing, confirms the Plan, as altered, amended or modified, under Section 1129 of the 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 Claim of such holder.

 

Prior to the Effective Date, the Debtor may make appropriate technical adjustments and modifications to the Plan without further order or approval of the Court, but subject to Section 1127 of the Code and approval of SunTrust and the Claims Examiner.

 

 

In the event that the Court determines, prior to the Confirmation Date, that any provision in the Plan is invalid, void or unenforceable, such provision shall be invalid, void or unenforceable with respect to the holder or holders of such Claims or Equity Interests as to which the provision is determined to be invalid, void or unenforceable. The invalidity, voidness or unenforceability of any such provision shall in no way limit or affect the enforceability and operative effect of any other provision of the Plan. The Court, at the request of the Debtor or the Liquidating Agent, shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. 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.

 

 

 

 

All notices, requests and demands to or upon the Debtor to be effective shall be in writing and, unless otherwise expressly provided in the Plan, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:

 

 

                               

                                                           

 

Except to the extent the Code, Rules or other federal law is applicable, or to the extent the Plan or any agreement entered into pursuant to the Plan provides otherwise, the rights and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida, without giving effect to the principles of conflicts of law of such jurisdiction.

 

 

In connection with the consummation of the Plan, the Debtor and the Liquidating Agent shall comply with all withholding and reporting requirements imposed by any federal, state, local or foreign taxing authority and all distributions hereunder shall be subject to any such withholding and reporting requirements. The Liquidating Agent shall not be responsible for the preparation or filing of any reports, statements or other documents required to be filed by the Debtor under any state or federal securities laws, including the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

 

On or before Substantial Consummation of the Plan, the Debtor shall file with the Court and, if necessary, obtain Court approval of such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan.

 

 

Notwithstanding anything in the Plan to the contrary, nothing contained in the Plan shall be deemed as an admission by any Person with respect to any matter set forth in the Plan or herein.

 

 

 

In computing any period of time prescribed or allowed by the Plan, unless otherwise set forth herein or determined by the Court, the provisions of Rule 9006 shall apply.

 

 

A creditor or party in interest may bring a motion to convert or dismiss the Case under Section 1112(b) of the Code after entry of the Confirmation Order if there is a default in performing the conditions to effectiveness of the Plan. If the Court orders the Case converted to chapter 7 after the entry of the Confirmation Order, this Plan provides that property of the Debtor’s estate that have not been disbursed pursuant to the provisions herein will revest in the chapter 7 estate and that the automatic stay will be reimposed upon the revested property to the extent that relief from the stay was not previously authorized by the Court during the pendency of the Case. The Confirmation Order may also be revoked under certain limited circumstances. The Court may revoke the Confirmation Order if and only if such order was procured by fraud and if a party in interest brings a motion to revoke such Confirmation Order within 180 days after the entry of the Confirmation Order.

 

 

When the Liquidating Debtor’s Estate has been fully administered, the Liquidating Agent shall file a motion with the Court to obtain a final decree to close the Case.

 

 

In the event of any inconsistency between the Plan and the Disclosure Statement, any Exhibit to the Plan or the Disclosure Statement or any other instrument or document created or executed pursuant to the Plan, the Plan shall govern. In the event of any inconsistency between the Plan and the Confirmation Order, the Confirmation Order shall govern.

 

 

 

Except as otherwise provided under the Plan, or as ordered by the Court, no interest, penalty or other charge, including any late charge, arising from and after the Petition Date, and no award or reimbursement of any attorneys’ fees or other related cost or disbursement, shall be allowed on, or in connection with, any Claim, unless otherwise provided under the Plan or awarded by the Court.

 

 

This Plan and all the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

 

The headings of articles, paragraphs and sub-paragraphs in this Plan are inserted for convenience only and shall not affect the interpretation of any provision of this Plan.

 

 

The Debtor shall not be liable for payment of any sum or interest in the form of a penalty relating to the prepayment of any Claim treated under this Plan.

 

 

Any minor defect or inconsistency in the Plan may be corrected or amended by the Confirmation Order.

 

 

After the Effective Date, the Liquidating Agent may, with approval of the Court, and so long as it does not materially and adversely affect the interests of Creditors or holders of Equity Interests, remedy any defect or omission or reconcile any inconsistencies in the Plan or in the Confirmation Order in such manner as may be necessary to carry out the purposes and effect of the Plan and in form and substance satisfactory to the Liquidating Agent.

 

 

The aforesaid provisions shall constitute the Plan of Liquidation of the Debtor. This Plan, when approved and confirmed by the Court, shall be deemed binding on the Debtor and all Creditors; holders of Equity Interests and all other parties in interest and their successors and assigns in accordance with Section 1141 of the Code.