Attached files
file | filename |
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8-K - FORM 8-K - CAPITAL CORP OF THE WEST | f54334e8vk.htm |
EX-99.3 - EX-99.3 - CAPITAL CORP OF THE WEST | f54334exv99w3.htm |
EX-99.1 - EX-99.1 - CAPITAL CORP OF THE WEST | f54334exv99w1.htm |
EX-99.4 - EX-99.4 - CAPITAL CORP OF THE WEST | f54334exv99w4.htm |
Exhibit 99.2
STEVEN H. FELDERSTEIN, State Bar No. 056978 | ||
PAUL J. PASCUZZI, State Bar No. 148810 | ||
FELDERSTEIN FITZGERALD WILLOUGHBY & PASCUZZI LLP | ||
400 Capitol Mall, Suite 1450 | ||
Sacramento, CA 95814 | ||
Telephone: (916) 329-7400 | ||
Facsimile: (916) 329-7435 | ||
ppascuzzi@ffwplaw.com |
Attorneys for Capital Corp of the West
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
In re: |
||
CAPITAL CORP OF THE WEST, |
Case No. 09-14298 | |
Debtor. |
Chapter 11 | |
Tax ID # |
DEBTORS FIRST AMENDED PLAN OF LIQUIDATION (dated October 23, 2009)
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 | |||
ARTICLE 2 CLASSIFICATION OF CLAIMS AND INTERESTS |
8 | |||
2.1 Class 1 (Priority): |
8 | |||
2.1.1 Class 1A (Wages): |
8 | |||
2.1.2 Class 1B (Other Priority Claims): |
8 | |||
2.2 Class 2 (Secured): |
8 | |||
2.3 Class 3 (General Unsecured): |
9 | |||
2.4 Class 4 (Subordinated General Unsecured Claims): |
9 | |||
2.5 Class 5 (Shareholders): |
9 | |||
ARTICLE 3 SPECIFICATION AND TREATMENT OF UNCLASSIFIED CLAIMS |
9 | |||
ARTICLE 4 TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS |
10 | |||
4.1 Class 1 (Priority Claims): |
10 | |||
4.1.1 Class 1A (Wages): |
10 | |||
4.1.2 Class 1B (Other Priority Claims): |
10 | |||
4.2 Class 2 (Secured Claims): |
10 | |||
4.3 Class 3 (Unsecured Claims): |
10 | |||
4.4 Class 4 (Subordinated General Unsecured Claims): |
11 | |||
4.5 Class 5 (Shareholders): |
11 | |||
ARTICLE 5 UNIMPAIRED AND IMPAIRED CLASSES |
11 | |||
ARTICLE 6 MEANS FOR IMPLEMENTATION AND EXECUTION OF THE PLAN |
12 | |||
6.1 Assets of the Estate Do Not Revest in the Debtor: |
12 | |||
6.2 Post-Confirmation Debtor Acts through a Plan Administrator: |
12 | |||
6.3 Post-Confirmation Debtor Administration, Powers and Duties: |
12 | |||
6.4 Post-Confirmation Governance of the Post-Confirmation Debtor: |
13 | |||
6.5 Limitation on Liability of the Debtor, the Post-Confirmation Debtor,
Creditors Committee, the Plan Administrator, Indenture Trustees and
Statutory Trustees: |
13 | |||
6.6 Compliance with Tax Requirements: |
14 |
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
6.7 Approval of Transactions Outside the Ordinary Course of Business: |
14 | |||
6.8 Post-Confirmation U.S. Trustee Quarterly Fees and Quarterly Reports: |
14 | |||
6.9 Post-Confirmation Employment of Professionals: |
15 | |||
6.10 Post-Confirmation Compensation: |
15 | |||
6.11 Preservation and Assignment of Causes of Action: |
16 | |||
6.12 Abandonment of Assets: |
17 | |||
6.13 Closing of Case: |
17 | |||
6.14 Certain Jurisdictional Limitations: |
17 | |||
6.15 Stay or Injunction in Aid of the Plan: |
18 | |||
6.16 Exemption from Transfer Taxes: |
18 | |||
6.17 Cancellation of Indentures and Trusts; Preservation of Rights: |
19 | |||
ARTICLE 7 PROCEDURES RELATING TO CLAIMS AND INTERESTS |
19 | |||
7.1 Pre-Petition, Unsecured Claims Bar Date: |
19 | |||
7.2 Bar Date for Administrative Claims Incurred Before the Confirmation
Date: |
19 | |||
7.3 Disputed Claims: |
20 | |||
7.4 Deadline for Objections to Claims: |
20 | |||
7.5 Interim Distributions: |
20 | |||
7.6 Distributions to Holders of TRUPS Claims: |
20 | |||
7.7 Claims Under Bankruptcy Code § 502(h): |
21 | |||
7.8 Claims Cap: |
21 | |||
7.9 Unclaimed Distributions and Claim Waiver: |
21 | |||
7.10 DeMinimis Distributions: |
21 | |||
ARTICLE 8 EXECUTORY CONTRACTS AND LEASES |
22 | |||
ARTICLE 9 EFFECT OF CONFIRMATION |
22 | |||
9.1 Discharge: |
22 | |||
9.2 Creditors Committee Continuation: |
22 | |||
ARTICLE 10 MODIFICATION OF PLAN |
23 |
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-ii-
10.1 Pre-Confirmation Modification: |
23 | |||
10.2 Post-Confirmation Modification With No Materially Adverse Effect: |
23 | |||
10.3 Post-Confirmation Material Modification: |
24 | |||
ARTICLE 11 RETENTION OF JURISDICTION |
24 | |||
11.1 Retention of Jurisdiction: |
24 |
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-iii-
INTRODUCTION
On May 11, 2009, Capital Corp of the West (the Debtor) filed a voluntary petition under
Chapter 11 of the Bankruptcy Code. The Debtor hereby proposes the following plan of liquidation
(the Plan) pursuant to Bankruptcy Code section 1121. As is more fully described in the Disclosure
Statement to the Plan, the Plan is designed to complete the orderly liquidation of the Debtors
business and assets and to distribute the proceeds consistent with the requirements of the
Bankruptcy Code and orders of the Bankruptcy Court previously entered in the cases.
The Debtor, as the proponent of the Plan, has prepared and filed a Disclosure Statement,
which has been approved by the Bankruptcy Court and which accompanies this Plan. Reference is made
to the Disclosure Statement for a discussion of the Debtors history, business, and post-petition
developments, and for a summary and analysis of the Plan. All Creditors and parties in interest
should consult the Disclosure Statement before voting to accept or reject the Plan.
ARTICLE 1
DEFINITIONS
DEFINITIONS
The following terms used in the Plan and the Disclosure Statement and shall, unless the
context otherwise requires, have the meanings specified below:
1.1 Administrative Claim: Any cost, Claim or expense of administration of the
Chapter 11 Case arising after the Petition Date and before the Effective Date approved by the
Court and entitled to priority in accordance with the provisions of sections 503(b) and
507(a)(l)
of the Bankruptcy Code, including, without limitation, (a) all actual and necessary expenses
of
preserving the Estate, to the extent approved by the Court, (b) Professional Claims and all
other
allowances of compensation or reimbursement of expenses of Professional Persons to the extent
approved by the Court, and (c) all reasonable, necessary and actual costs and expenses of
members of the Creditors Committee to the extent approved by the Court.
1.2 Allowed Claim: Any Claim against the Debtor or the Estate provided: (a) proof of
which was timely and properly filed or, if no proof of Claim was filed, which has been or
hereafter is scheduled as liquidated in amount and not disputed or contingent, and (b) in
either
such case, (i) a Claim as to which no timely objection to the allowance thereof has been made,
(ii)
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-1-
to which any objection has been determined by a Final Order to the extent such objection is
determined in favor of the holder of the Claim, or (iii) which is denoted as an Allowed Claim in
the Plan.
1.3 Ballot: The form distributed to each holder of an impaired Claim on which such
holder is to indicate acceptance or rejection of the Plan, among other things.
1.4 Bankruptcy Code: The Bankruptcy Reform Act of 1978, 11 U.S.C. §101 et. seq.,
as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and as
further amended from time to time.
1.5 Business Day: Any day on which banks are open to carry on their ordinary
commercial banking business in Sacramento, California.
1.6 Case: As to the Debtor, case no. 09-14298 pending before this Court.
1.7 Claim: Any right to payment from the Debtor or the Estate that arose on or before
the Confirmation Date, whether or not such right is reduced to judgment, liquidated,
unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or
unsecured; or any right to an equitable remedy for breach of performance if such breach gives
rise
to a right of payment from the Debtor or the Estate whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
1.8 Creditors Committee: The Official Committee of Unsecured Creditors appointed
in the Case pursuant to the provisions of section 1102 of the Bankruptcy Code, by the Office
of
the United States Trustee (U.S. Trustee).
1.9 Confirmation Date: The date of entry of the Confirmation Order in accordance
with the provisions of the Bankruptcy Code.
1.10 Confirmation Order: The order of the Court confirming the Plan under
Bankruptcy Code section 1129.
1.11 Post-Confirmation Debtor: The Debtor on and after the Effective Date of the
Plan.
1.12 Court: The United States Bankruptcy Court for the Eastern District of
California,
Fresno Division, including the United States Bankruptcy Judge presiding in this case.
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-2-
1.13 Creditor: A person that is the holder of a Claim against the Debtor that arose on
or before the Confirmation Date, or a Claim against the Debtors Estate of any kind specified in
sections 502(g), 502(h) or 502(i) of the Bankruptcy Code.
1.14 Debtor: Capital Corp of the West.
1.15 Debentures I: Debentures issued pursuant to Indenture I.
1.16 Debentures II: Debentures issued pursuant to Indenture II.
1.17 Debentures III: Debentures issued pursuant to Indenture III.
1.18 Debentures IV: Debentures issued pursuant to Indenture IV.
1.19 Debentures: Debentures I, Debentures II, Debentures III, and Debentures IV
collectively.
1.20 Disallowed Claim: Disallowed Claim means any Claim or any portion thereof
that (i) has been disallowed by a Final Order of the Bankruptcy Court, (ii) is listed in the
Schedules as $0, contingent, disputed or unliquidated and as to which a proof of claim bar
date
has been established but no Proof of Claim has been timely filed or deemed timely filed with
the
Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy
Court or otherwise deemed timely filed under applicable law, or (iii) is not listed on the
Schedules
and as to which a proof of claim bar date has been established but no Proof of Claim has been
timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the
Bankruptcy
Code or any Final Order of the Bankruptcy Court or otherwise deemed timely filed under
applicable law.
1.21 Disclosure Statement: That certain disclosure statement approved in the Case
accompanying the Plan.
1.22 Effective Date: The first Business Day occurring on or after the eleventh (11th)
day following the Confirmation Date; provided, however, that if a stay of the Confirmation
Order
is in effect on such first Business Day, then the Effective Date shall be the first Business
Day
thereafter on which (a) no stay of the Confirmation Order is in effect and (b) the
Confirmation
Order has not been vacated.
1.23 Estate: The estate created in the Case under Bankruptcy Code section 541.
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-3-
1.24 Final Order: An order or a judgment of a court of competent jurisdiction which
(a)
has not been reversed, stayed, modified or amended, and as to which the time to appeal or seek
review or rehearing has expired and as to which any right to appeal, reargue, petition for a
certiorari or rehearing has been waived in a manner satisfactory to the Debtor, as a result of
which
such order shall have become final in accordance with applicable law, or (b) if an appeal,
reargument, certiorari or rehearing thereof has been sought, the order of the lower court has
been
affirmed by the higher court to which the order was appealed or from which the reargument or
rehearing was sought or certiorari has been denied, and time to take further appeal or to seek
certiorari or further reargument or rehearing has expired.
1.25 Indenture I: Indenture dated as of February 22, 2001, between Capital Corp of the
West, as issuer, and U.S. Bank National Association (successor-in-interest to State Street
Bank
and Trust Company of Connecticut, National Association), as trustee relating to the issuance
of
Junior Subordinated Deferrable Interest Debentures due 2031.
1.26 Indenture II: Indenture dated as of December 17, 2003, between Capital Corp of
the West, as issuer, and U.S. Bank National Association, as trustee relating to the issuance
of
Floating Rate Junior Subordinated Deferrable Interest Debentures due 2033.
1.27 Indenture III: Indenture dated as of June 23, 2006, between Capital Corp of the
West, as issuer, and U.S. Bank National Association, as trustee relating to the issuance of
Junior
Subordinated Deferrable Interest Debentures due September 15, 2036.
1.28 Indenture IV: Indenture dated as of October 23, 2007, between Capital Corp of
the West, as issuer, and Wilmington Trust Company, as trustee relating to the issuance of
Floating Rate Junior Subordinated Deferrable Interest Debentures due 2037.
1.29 Indentures: Indenture I, Indenture II, Indenture III, and Indenture IV, collectively.
1.30 Indenture Trustee I: Trustee under Indenture I.
1.31 Indenture Trustee II: Trustee under Indenture II.
1.32 Indenture Trustee III: Trustee under Indenture III.
1.33 Indenture Trustee IV: Trustee under Indenture IV.
1.34 Indenture Trustees: Indenture Trustee I, Indenture Trustee II, Indenture Trustee
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-4-
III, and Indenture Trustee IV, collectively.
1.35 | Interest: An equity security as defined in section 101(16) of the Bankruptcy Code including, without limitation, the rights of each shareholder of the Debtor. | |
1.36 | Petition Date: May 11, 2009, the date on which the Debtor filed its petition for relief commencing the Case. | |
1.37 | Plan: This Plan of Liquidation proposed by the Debtor, either in its present
form
or as it may be amended or modified from time to time. |
|
1.38 | Plan Administrator: Person or entity employed to conduct the Post-Confirmation Debtors affairs as set forth in the Plan. | |
1.39 | Pre-Petition Tax Claims: Allowed Claims of Governmental Units entitled to
priority under Bankruptcy Code sections 502(i) and 507(a)(8). |
|
1.40 | Priority Claims: Allowed Claims entitled to priority under sections 507(a) of the Bankruptcy Code, except Administrative Claims and Pre-Petition Tax Claims. | |
1.41 | Professional Claims: Claims of all Professional Persons employed by the Debtor
or the Creditors Committee. |
|
1.42 | Professional Persons: Persons retained or to be compensated pursuant to sections 326, 327, 328, 330, 503(b) and 1103 of the Bankruptcy Code. | |
1.43 | Proponent: The Debtor. | |
1.44 | Pro Rata: The proportion that the amount of a Claim or Interest in a particular class bears to the aggregate amount of all Claims or Interests which are entitled to a particular distribution (including undetermined Claims or Interests until disallowed) in such class. | |
1.45 | Rules: The Federal Rules of Bankruptcy Procedure and Interim Rules of
Bankruptcy Procedure applicable to the Cases, as amended. |
|
1.46 | Secured Claim: An Allowed Claim held by any entity to the extent of the value, as set forth in the Plan, as determined by Final Order of the Court pursuant to section 506(a) of the Bankruptcy Code, or as agreed upon by such entity and the Debtor of any duly perfected interest in property of the Estates, or any of them, validly and enforceably securing such Allowed Claim. | |
1.47 | Statutory Trust I: Amended and Restated Declaration of Trust, dated as of |
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-5-
February 22, 2001, by and among Capital Corp of the West, as sponsor, U.S. Bank National
Association (successor-in-interest to State Street Bank and Trust Company of Connecticut, National
Association), as the Institutional Trustee and certain Administrators.
1.48 Statutory Trust II: Amended and Restated Declaration of Trust, dated as of
December 17, 2003, by and among Capital Corp of the West, as sponsor, U.S. Bank National
Association, as the Institutional Trustee and certain Administrators.
1.49 Statutory Trust III: Amended and Restated Declaration of Trust, dated as of June
23, 2006, by and among Capital Corp of the West, as sponsor, U.S. Bank National Association,
as
the Institutional Trustee and certain Administrators.
1.50 Statutory Trust IV: Amended and Restated Declaration of Trust, dated as of
October 31, 2007, by and among Capital Corp of the West, as sponsor, the Delaware Trustee, the
Institutional Trustee, and certain Administrators.
1.51 Statutory Trusts: Statutory Trust I, Statutory Trust II, Statutory Trust III, and
Statutory Trust IV, collectively.
1.52 Statutory Trustee I: The Institutional Trustee under Statutory Trust I.
1.53 Statutory Trustee II: The Institutional Trustee under Statutory Trust II.
1.54 Statutory Trustee III: The Institutional Trustee under Statutory Trust III.
1.55 Statutory Trustee IV: The Institutional Trustee under Statutory Trust IV.
1.56 Statutory Trustees: Statutory Trustee I, Statutory Trustee II, Statutory
Trustee III,
and Statutory Trustee IV, collectively.
1.57 Subordinated General Unsecured Claim: Allowed Claims that are found to be
subordinated to Unsecured Claims, other than Subordinated TRUPS Claims.
1.58 Subordinated TRUPS Claim: Allowed TRUPS Claims that are found by the Court
to be, or pursuant to the Plan are denoted as, subordinated to any specific Allowed Unsecured
Claims.
1.59 TRUPS Claims: Any Claim based on the Debtors obligations under the
Indentures, Debentures, Trust Securities, Statutory Trusts and guarantees relating to the
Trust
Securities, including (a) a Claim for principal and interest on the Debentures as of the
Petition
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-6-
Date, (b) non-subordinated claim for the fees, expenses and indemnification rights of the
Indenture Trustees and Statutory Trustees to the extent such Claim exists as of the Petition
Date, and (c) principal and interest on the Trust Securities as of the Petition Date. The
following are the Allowed TRUPS Claims solely for principal and interest (with the amount for
the fees, expenses and indemnification rights of the Indenture Trustees and Statutory Trustees
to be subsequently determined); provided however, that the Debtor reserves all rights to assert
offset rights, if any, and reserves all rights to challenge any amount of fees, expenses and
indemnification rights that may be added to the claims at a later date.
Indenture | [Subordinated | |||||
Trustee | Trust | Allowed Claim | Portion [If Any]] | |||
U.S. Bank National |
Statutory Trust I | $6,937,607.63 | TBD | |||
Association as
Trustee I and
Statutory Trustee
I |
||||||
U.S. Bank National |
Statutory Trust II | $10,847,166.49 | TBD | |||
Association as
Trustee II and
Statutory Trustee
II |
||||||
U.S. Bank National |
Statutory Trust III | $16,208,779.16 | TBD | |||
Association as
Trustee III and
Statutory Trustee
III |
||||||
Wilmington Trust |
Statutory Trust IV | $27,526,346.46 | TBD | |||
Company as Trustee
IV and Statutory
Trustee IV |
1.60 Trust I Securities: Securities issued by Statutory Trust I.
1.61 Trust II Securities: Securities issued by Statutory Trust II.
1.62 Trust III Securities: Securities issued by Statutory Trust III.
1.63 Trust IV Securities: Securities issued by Statutory Trust IV.
1.64 Trust Securities: Trust I Securities, Trust II Securities, Trust III Securities, and
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-7-
Trust IV Securities, collectively.
1.65 Unencumbered Assets: All assets of the Estate on the Effective Date, which are
not subject to a Secured Claim.
1.66 Unsecured Claim: Any Claim that is not an Administrative Claim, a Secured
Claim, a Priority Claim or a Subordinated General Unsecured Claim.
The words herein, hereof and hereunder and other words of similar import refer to the
Plan as a whole and not to any particular section, subsection or clause contained in the Plan.
Where not inconsistent or in conflict with the provisions of the Plan, the words and phrases used
herein shall have the meanings ascribed thereto in the Bankruptcy Code and in the Rules. To the
extent of any inconsistencies between the Plan and the Disclosure Statement, the terms of the Plan
control.
ARTICLE 2
CLASSIFICATION OF CLAIMS AND INTERESTS
CLASSIFICATION OF CLAIMS AND INTERESTS
2.1 Class 1 (Priority):
Allowed Claims entitled to priority pursuant to section 507(a) of the Bankruptcy Code, except
Administrative Claims and Pre-Petition Tax Claims, as follows:
2.1.1 Class 1A (Wages):
Class 1A consists of all Allowed Claims of current or former employees of the Debtor for
wages, salaries or commissions, including vacation, severance, and sick leave pay earned by such
employee within 180 days of the Petition Date and up to $10,950 for each individual as provided in
section 507(a)(4), and Allowed Claims for contributions to any employee benefit plan as provided in
section 507(a)(5).
2.1.2 Class 1B (Other Priority Claims):
Class 1B consists of all other Allowed Claims against the Debtor entitled to the treatment
specified in section 1129(a)(9), except Administrative Claims, Professional Claims, and
Pre-Petition Tax Claims.
2.2 Class 2 (Secured):
Class 2 consists of Claims of any holder of an Allowed Secured Claim.
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-8-
2.3 Class 3 (General Unsecured):
Class 3 consists of all holders of Allowed Unsecured Claims.
2.4 Class 4 (Subordinated General Unsecured Claims):
Class 4 consists of all holders of Subordinated General Unsecured Claims.
2.5 Class 5 (Shareholders):
Class 5 consists of all holders of Allowed Interests in the Debtor.
ARTICLE 3
SPECIFICATION AND TREATMENT OF UNCLASSIFIED CLAIMS
SPECIFICATION AND TREATMENT OF UNCLASSIFIED CLAIMS
3.1 Other than the Professional Claims, each Administrative Claim against the Debtor
or its Estate shall be paid in full as soon as practicable after the entry of an order of the
Court
approving such Administrative Claim or on the Effective Date, whichever is later, unless
different
treatment is agreed to between the claimant and the Debtors; provided however, that the Post-Confirmation Debtor is hereby authorized to pay any and all Administrative Claims in the
ordinary course of business without Court approval. Except as may be expressly set forth in
the
Plan or by an order of the Court, no holder of an Administrative Claim shall be entitled to
payment on account of any post-petition interest or penalties arising with respect to such
Administrative Claim.
3.2 To the extent any Professional Person holds a Professional Claim against the
Debtor for services rendered prior to the Effective Date of the Plan, such Professional Person
shall be paid in full upon Court approval pursuant to the terms of the applicable employment
order.
3.3 Allowed Pre-Petition Tax Claims shall be paid in full on the Effective Date of the
Plan or accordance with sections 1129(a)(9)(C)
and (D).
and (D).
3.4 All fees payable by the Debtor through the Confirmation Date under 28 U.S.C.
§1930 shall be paid in full on the Effective Date or as soon thereafter as they may come due
in the
ordinary course.
///
///
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-9-
ARTICLE 4
TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
4.1 Class 1 (Priority Claims):
4.1.1 Class 1A (Wages):
The holder of each Allowed Class 1A Claim shall be paid the Allowed amount of their Priority
Claim in the amount required under section 507(a)(4) and section 507(a)(5) in cash on the
Effective Date or as soon thereafter as is practicable, except to the extent that the holder of a
particular Claim has agreed otherwise.
4.1.2 Class 1B (Other Priority Claims):
Any Allowed Priority Claims not otherwise included in Class 1A shall be paid the Allowed
amount thereof in cash on the Effective Date or as soon thereafter as is practicable, except to
the extent that the holder of a particular Claim has agreed otherwise.
4.2 Class 2 (Secured Claims):
Any holder of an Allowed Secured Claim shall retain its liens securing the Claims and shall
receive deferred cash payments totaling at least the allowed amount of their Claims, of a value, as
of the Effective Date of the Plan, of at least the value of each claimants interest in the
collateral as required under section 1129(b)(2) of the Bankruptcy Code; provided however, that the
Debtor reserves the right to require each claimant to remove, at its own cost and peril and without
damage to any property of the Estate, and at a time mutually convenient to such holder and the
Debtor, such property as to which such holder holds a perfected security interest. Such holder may
file and assert a Claim within Class 3 for any deficiency resulting from such abandonment and
return of collateral, provided that a proof of claim therefore is filed with the Court and served
upon the Debtor (a) within thirty (30) days following the Effective Date. The Debtor does not
believe there are any holders of Class 2 Secured Claims.
4.3 Class 3 (Unsecured Claims):
All Allowed Unsecured Claims within Class 3 shall be paid or otherwise satisfied in full from
any Unencumbered Funds from the liquidation of the Debtors assets after all payment in full, or
reservation for payment in full, of all Administrative Claims, Priority Claims,
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-10-
Pre-Petition Tax Claims, Professional Claims, and Class 1 Claims, and after payment or reservation
of sufficient funds to pay for all post-confirmation liquidation expenses. In the event there are
insufficient Unencumbered Funds to pay all Allowed Unsecured Claims in full, the holders of Allowed
Unsecured Claims in Class 3 shall be paid on a Pro Rata basis. In no event shall any holder of an
Allowed Unsecured Class 3 Claim receive more than the full amount of its Allowed Unsecured Claim.
In the event any Allowed TRUPS Claim is found by the Court to be, or pursuant to the Plan is
denoted as, a Subordinated TRUPS Claim, then such Subordinated TRUPS Claims pro rata share of any
distribution shall be paid to the creditor to which the Subordinated TRUPS Claim is subordinated
until such claim is paid in full, then any further distribution shall be made to the Subordinated
TRUPS Claim. In no event shall such subordination affect any other creditor.
4.4 Class 4 (Subordinated General Unsecured Claims):
In the event any Allowed Claims, other than Subordinated TRUPS Claims, are found to be
subordinated to Class 3 claims, then such claims shall be Class 4 claims and shall not receive any
distribution unless and until all Class 3 claims are paid in full including interest at the legal
rate as of the Effective Date.
4.5 Class 5 (Shareholders):
All holders of shares of common or preferred stock of the Debtor shall receive nothing under
the Plan. All such shares, warrants or stock options shall be canceled as of the Effective Date of
the Plan.
ARTICLE 5
UNIMPAIRED AND IMPAIRED CLASSES
UNIMPAIRED AND IMPAIRED CLASSES
5.1 Classes 1A, 1B and 2 are unimpaired under this Plan, are deemed to accept the
Plan and are not entitled to vote.
5.2 Classes 3 and 4 are impaired under this Plan.
5.3 Class 5 receives nothing under the Plan, is deemed to reject the Plan, and is not
entitled to vote.
///
Debtors First Amended
Plan of Liquidation
Plan of Liquidation
-11-
ARTICLE 6
MEANS FOR IMPLEMENTATION AND EXECUTION OF THE PLAN
MEANS FOR IMPLEMENTATION AND EXECUTION OF THE PLAN
6.1 Assets of the Estate Do Not Revest in the Debtor:
The Debtor shall not be revested with its assets on confirmation of the Plan, but shall
manage its affairs and its property as Post-Confirmation Debtor under the terms of the Plan.
Accordingly, the automatic stay pursuant to 11 U.S.C. § 362 shall remain in effect with respect to
the Debtors assets following the Effective Date of the Plan until such time as (a) such property
is no longer property of the estate, (b) relief from stay is granted by Final Order of the Court,
or (c) the Court enters a Final Decree and the Case is closed.
6.2 Post-Confirmation Debtor Acts through a Plan Administrator:
The Post-Confirmation Debtor through a Plan Administrator, acting as a liquidating and
distribution agent, shall continue to liquidate assets of the Estate, if any, in a prudent and
businesslike manner after the Effective Date. Such liquidation may include, without limitation, (a)
merger or consolidation of the Debtor with one or more persons, (b) sale of all or any part of the
property of the Estate, (c) distribution of property to those having an interest in the property,
or (e) the transfer of all or any part of the property of the Estate to one or more entities,
whether organized before or after the confirmation of the Plan. On the Effective Date or as soon
thereafter as practicable, the Post-Confirmation Debtor shall make the payments or reserve
sufficient funds to make such payments in the future that are required under the Plan by Article 3
(unclassified Claims) and to Classes 1A and 1B. Except as otherwise provided in paragraph 6.6 of
the Plan, the Post-Confirmation Debtor is authorized to pay any and all post-confirmation
liquidation expenses without further order of the Court.
6.3 Post-Confirmation Debtor Administration, Powers and Duties:
The Post-Confirmation Debtor shall have such powers as are set forth in the Plan and the
Confirmation Order and which are necessary to the proper performance of its duties as set forth in
the Plan. In addition, the Post-Confirmation Debtor shall retain post-confirmation all rights of a
trustee serving as a Chapter 11 trustee pursuant to the Bankruptcy Code.
///
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6.4 Post-Confirmation Governance of the Post-Confirmation Debtor:
The Post-Confirmation Debtor shall be managed and conduct its affairs through a plan
administrator (Plan Administrator). The Debtor or the Post-Confirmation Debtor, as the case may
be, shall select the Plan Administrator in consultation with the Creditors Committee. The Debtor
or the Post-Confirmation Debtor, as the case may be, shall file and serve a motion to approve the
employment of the Plan Administrator. The Plan Administrator shall have all powers and duties as
are necessary to implement the Plan and shall act as the sole member of the Post-Confirmation
Debtors Board of Directors upon Court approval of the employment of the Plan Administrator. Upon
Court approval of the employment of the Plan Administrator, the current Board of Directors of the
Debtor shall be deemed disbanded; provided, however, that the current Board of Directors shall
serve until such time as the Plan Administrator is appointed by the Court.
6.5 Limitation on Liability of the Debtor, the Post-Confirmation Debtor, Creditors
Committee, the Plan Administrator, Indenture Trustees and Statutory Trustees:
Except as otherwise prohibited by the Bankruptcy Code or applicable non-bankruptcy law,
Capital Corp of the West, the Post-Confirmation Debtor, the Plan Administrator, the Creditors
Committee, and each Indenture Trustee and Statutory Trustee, and each of their officers, directors,
attorneys, consultants, employees, agents and assignees, shall have no liability for any error of
judgment acting in his/her official capacity made in good faith other than as a result of gross
negligence or willful misconduct from the Petition Date forward. Except as otherwise prohibited by
the Bankruptcy Code or applicable non-bankruptcy law, the Post-Confirmation Debtor, the Plan
Administrator, the Creditors Committee, and each Indenture Trustee and Statutory Trustee, and each
of their officers, directors, consultants, attorneys, employees, and agents shall not be liable for
any action taken or omitted in good faith and believed by them to be authorized within the
discretion or rights or powers conferred upon them by the Plan. No provision of the Plan shall
require any employee, officer or director of the Post-Confirmation Debtor, the Creditors
Committee, the Plan Administrator, any Indenture Trustee or Statutory Trustee to expend or risk his
or her own funds or otherwise incur personal financial liability in the performance of any of his
or her duties under the Plan or in the exercise of any of
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his or her rights and powers.
6.6 Compliance with Tax Requirements:
In connection with the Plan, to the extent applicable, the Post-Confirmation Debtor shall
comply with all payroll tax and reporting requirements imposed on it by any Governmental Unit, and
all distributions made pursuant to the Plan shall be subject to, and reduced by, such tax and
reporting requirements. The Post-Confirmation Debtor shall be authorized to take any actions that
may be necessary or appropriate in order to comply with such tax and reporting requirements,
including but not limited to requiring recipients to fund the payment of withholding as a condition
to delivery. Notwithstanding any other provision of the Plan, each person or entity receiving a
distribution of cash pursuant to the Plan will have sole and exclusive responsibility for the
satisfaction and payment of any tax obligations imposed on it by any Governmental Unit on account
of such distribution, including income withholding and other tax obligations.
6.7 Approval of Transactions Outside the Ordinary Course of Business:
The Post-Confirmation Debtor may enter into transactions outside the ordinary course of
business, including the transfer, sale or abandonment of assets or the settlement of any Claims or
causes of action, only after order of the Court in accordance with the Bankruptcy Code, Rules and
Local Rules as if the Post-Confirmation Debtor was a debtor in possession; provided however, that
the Post-Confirmation Debtor may transfer, sell or abandon any assets or settle any Claims or
causes of action (a) that have a net effect on the Estate of $50,000 or less without Court
approval or further notice except notice to any Creditors Committee through counsel at least 10
days prior to such disposition and (b) that have a net effect on the Estate of more than $50,000
and less than $250,000 without Court approval where the Creditors Committee affirmatively
consents.
6.8 Post-Confirmation U.S. Trustee Quarterly Fees and Quarterly Reports:
The quarterly fees shall be paid by the Post-Confirmation Debtor to the U.S. Trustee for each
quarter (including any fraction thereof) and quarterly reports in the form required by the U.S.
Trustee shall be filed by the Post-Confirmation Debtor until the case is closed, converted, or
dismissed.
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6.9 Post-Confirmation Employment of Professionals:
To assist in the performance of the functions under this Plan, the Post-Confirmation Debtor
may employ professionals, including professionals to liquidate assets and a plan administrator, to
the same extent as they could have been employed under the Bankruptcy Code before confirmation of
this Plan, except that further Court approval for employment shall not be required if the Court
approved the professionals employment before the Effective Date.
6.10 Post-Confirmation Compensation:
All professionals properly employed by the Post-Confirmation Debtor, including the Plan
Administrator, or the Creditors Committee shall be entitled to compensation for services rendered
and reimbursement for costs incurred after the Effective Date which shall be paid and shall have a
priority consistent with an Allowed Administrative Claim, subject to the procedures of this
section. So long as the rate of compensation is disclosed in any employment application, the
Post-Confirmation shall pay compensation and expense reimbursement without the need for any
additional notice or Court approval after compliance with the following procedures:
6.10.1 Commencing for the first full month after the Effective Date of the Plan or as soon
thereafter as practicable, and continuing each month thereafter, the Post-Confirmation Debtor or
Creditors Committee shall file with the Court and serve on the U.S. Trustee, the counsel for the
Creditors Committee, the Debtors secured creditors if any, the Post-Confirmation
Debtor and only if no Creditors Committee continues to exists, all parties who have requested
special notice in the Cases (collectively, the Notice Parties), an abbreviated notice of request
for payment of compensation and reimbursement of expenses (the Cover Sheet Application);
6.10.2 The Cover Sheet Application may be filed and served any time after the end of the month
for which compensation is sought;
6.10.3 The Cover Sheet Application shall relate to services rendered and expenses incurred
during the prior period, shall indicate a description of the services rendered and costs incurred,
the amount requested, the total time expended, the names of the professionals who performed the
services, and the hourly billing rate for each professional;
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6.10.4 The Cover Sheet Application shall be accompanied by a detailed listing of the time
expended by the professionals who performed the services and the costs incurred during the month,
with any confidential or privileged information redacted;
6.10.5 Any objection to the payment of fees or reimbursement of expenses in a Cover Sheet
Application must specifically describe the particular entry objected to, the nature of the
objection, and the amount of fees or costs objected to, and filed with the Court and served on the
Professional, the Post-Confirmation Debtor, the Post-Confirmation Debtors counsel, and the Notice
Parties within ten (10) calendar days of the date the Notice was mailed;
6.10.6 If no objection is timely filed and served, the Cover Sheet Application shall be deemed
approved, and the Post-Confirmation Debtor shall be authorized to make payment as requested
therein; and
6.10.7 If an objection is timely filed and served, then the Post-Confirmation Debtor shall be
authorized to make payment only of the appropriate percentage of those amounts that are not in
dispute, unless and until the Court enters an order approving the requested compensation or
expenses.
6.11 Preservation and Assignment of Causes of Action:
As of the Effective Date, each and every claim, right, cause of action, claim for relief,
right to set-off and other entitlement held by the Debtor, Capital Corp of the West or the Estate,
whether arising under §§ 502, 506, 510, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552
or 553 of the Bankruptcy Code, or otherwise, other than those waived or released by express terms
of the Plan or the Confirmation Order, shall be deemed fully preserved and vested in the
Post-Confirmation Debtor. This preservation shall specifically include the corporate entities and
all net operating losses to the extent allowed under non-bankruptcy law. Without limiting the
generality of the foregoing, any and all claims and causes of action held by the Debtor and/or the
Debtor in Possession prior to the Effective Date shall be retained by the Post-Confirmation,
including but not limited to all avoidance actions for transfers made by the Debtor, including all
transfers disclosed in the statement of financial affairs filed with the Court by the Debtor.
Confirmation of the Plan effects no settlement, compromise, waiver, or release of any
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cause of action unless the Plan or Confirmation Order specifically and unambiguously so provides.
The nondisclosure or nondiscussion of any particular cause of action is not and shall not be
construed as a settlement, compromise, waiver, or release of such cause of action.
6.12 Abandonment of Assets:
The Post-Confirmation Debtor hereby retains all assets of the Estate.
6.13 Closing of Case:
At such point as the Court determines, upon noticed motion of the Post-Confirmation Debtor or
other party in interest, that all pending Claims objections, contested matters and adversary
proceedings have been resolved, or that the Case need not remain open despite pending objections,
matters or proceedings, the Case may be closed by the terms of a final decree of the Court;
provided that the Case will be reopened thereafter if necessary to facilitate any actions
contemplated by the terms of the Plan. The fact that some or all of the distributions to Creditors
remain to be made shall not, in and of itself, constitute grounds for keeping the Case open when
the Post-Confirmation Debtor requests that the Case be closed.
6.14 Certain Jurisdictional Limitations:
Any party in interest who believes that the conduct of the Post-Confirmation Debtor, the Plan
Administrator, the Creditors Committee or professionals engaged by the Post-Confirmation Debtor,
the Creditors Committee or the Plan Administrator, is not consistent with the provisions of the
Plan, or believes that any Claims exist against the Post-Confirmation Debtor, the Creditors
Committee, the Plan Administrator or professionals working for the Post-Confirmation Debtor or the
Creditors Committee for any conduct taken within the scope of its/his/her duties as
Post-Confirmation Debtor, Creditors Committee or as such professional, all such Claims, rights,
requests for relief, or enforcement of the Plan must be filed in and determined by the Bankruptcy
Court having jurisdiction over the Case. No concurrent jurisdiction shall exist for the
determination or enforcement of any such rights under or arising from the Plan, or Claims against
the Post-Confirmation Debtor, Creditors Committee or professionals retained by the
Post-Confirmation Debtor or Creditors Committee, in any other state, federal or foreign court.
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6.15 Stay or Injunction in Aid of the Plan:
Except as otherwise provided in this Plan and until the Case is closed and the Plan is
completed, all parties, individuals and entities are stayed and enjoined from (a) commencing or
continuing in any manner any action or other proceeding of any kind on any such Claim or Interest
against the Debtor, the Debtor in Possession, the Estate, the Post-Confirmation Debtor, the Plan
Administrator or properties or interests in properties of the Debtor, the Debtor in Possession, the
Debtors estate, the Plan Administrator, the Post-Confirmation Debtor, any Indenture Trustee or
Statutory Trustee; (b) pursuing the enforcement, attachment, collection or recovery by any manner
or means of any judgment, award, decree or order against the Debtor, the Debtor in Possession, the
Debtors estate, or the Post-Confirmation Debtor, or properties or interests in properties of the
Debtor, the Debtor in Possession, the Estate, the Post-Confirmation Debtor, any Indenture Trustee
or Statutory Trustee; (c) creating, perfecting, or enforcing any encumbrance of any kind against
the Debtor, the Debtor in Possession, the Estate, or the Post-Confirmation Debtor; and (d) except
to the extent provided, permitted, or preserved by section 553 of the Bankruptcy Code or pursuant
to the common law right of recoupment, asserting any right of setoff, subrogation, or recoupment of
any kind against any obligation due from the Debtor, the Debtor in Possession, the Estate, or the
Post-Confirmation Debtor. Notwithstanding the foregoing, nothing in this Plan grants the Debtor a
discharge.
6.16 Exemption from Transfer Taxes:
Pursuant to the provisions of Section 1146(c) of the Bankruptcy Code, the issuance, transfer
or exchange of notes or equity securities under the Plan, the creation of any mortgage, deed of
trust or other security interest, the making or assignment of any lease or sublease, the sale or
other transfer of any assets by the Post-Confirmation Debtor to a third party, or the making or
delivery of any deed or other instrument of transfer under, in furtherance of, or in connection
with the Plan, including any deeds, bills of sale or assignments executed in connection with any of
the transactions contemplated under the Plan, shall not be subject to any stamp, transfer, real
estate transfer, mortgage recording, sales or other similar tax.
///
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6.17 Cancellation of Indentures and Trusts; Preservation of Rights:
On the Effective Date, all documents evidencing the TRUPS Claims, including each Indenture,
Debenture, Trust Security, Statutory Trust and any related guarantees, shall be terminated, and
neither the Debtor nor the other parties thereto shall have any further rights or obligations
thereunder, except that each Indenture and each Statutory Trust shall continue to be effective for
the following: (a) allowing a holder of an Allowed TRUPS Claim, including the Trustees, Statutory
Trustees, holders of Debentures and Securities to receive a distribution provided for under this
Plan and the provisions relating to distributions; (b) the right of an Indenture Trustee and
Statutory Trustee to exercise a charging lien against the recovery otherwise due to a holder of an
Allowed TRUPS Claim as provided under the Indenture for the payment of fees and expenses that
remain outstanding or for indemnification as provided under the Indenture and/or Statutory Trust;
and (c) the right of an Indenture Trustee to continue to serve on the Creditors Committee after
the Effective Date.
ARTICLE 7
PROCEDURES RELATING TO CLAIMS AND INTERESTS
PROCEDURES RELATING TO CLAIMS AND INTERESTS
7.1 Pre-Petition, Unsecured Claims Bar Date:
The deadline for filing pre-petition, unsecured Claims was established by the Court as
September 17, 2009, for Creditors other than Governmental Units. For Governmental Units, the
deadline is November 6, 2009.
7.2 Bar Date for Administrative Claims Incurred Before the Confirmation Date:
Holders of Administrative Claims arising before the Confirmation Date, including
those allowable under Bankruptcy Code section 503 but excluding post-confirmation Claims of
Professionals, shall be forever barred from recovering from Debtor or the Estate on account of such
Claim unless within forty-five (45) days of service of notice of entry of the Confirmation Order
the holder of such Claim files with the Court a motion for allowance of such Claim, including
notice of the date and time for the hearing on the allowance of such Claim.
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7.3 Disputed Claims:
In the case of disputed Claims and unless the Court orders otherwise for cause shown,
reserves from each distribution shall be set aside for the holder of each disputed Claim in an
amount equal to what each disputed Claim holder would have received had its Claim been allowed at
the time of the distribution, unless otherwise ordered by the Court under section 502(c). When the
dispute over the Claim is resolved, the funds reserved for the disputed Claim shall be paid if it
is allowed and any funds reserved for the disputed Claim, if disallowed, shall be re-distributed
to the holders of Allowed Claims of that class until paid in full. There shall be no distribution
to any Disallowed Claims.
7.4 Deadline for Objections to Claims:
Unless the Court orders otherwise, any objection to Claims filed by the Post-Confirmation
Debtor must be filed within 60 days of the later of (i) the Effective Date of the Plan, or (ii) the
order appointing a Plan Administrator becoming a Final Order. Unless the Court orders otherwise,
any objections to Claims by the Creditors Committee or any other party in interest shall be filed
within 90 days of the Effective Date of the Plan.
7.5 Interim Distributions:
The Post-Confirmation Debtor, in consultation with the Creditors Committee, shall make
interim distributions to holders of Allowed Claims no less frequently than every 120 days
following the Effective Date, provided that sufficient funds exist to continue the implementation
of the Plan and to reserve for disputed Claims and all costs to be incurred in completing the
liquidation of assets and other duties under the Plan. If the Creditors Committee has approved a
proposed distribution, Court approval is not required for interim distributions, but the
Post-Confirmation Debtor may seek such approval nonetheless.
7.6 Distributions to Holders of TRUPS Claims:
A distribution of a TRUPS Claim shall be made to the applicable Indenture Trustee, who will
make further distributions in accordance with the terms of the Indenture governing such Indenture
Trustee.
///
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7.7 Claims Under Bankruptcy Code § 502(h):
All Claims arising from judgments or settlements in an action by the Estate for recovery of
money or property must have been filed within thirty (30) days of the entry of such judgment or
date of such settlement as required by Rule 3002(c)(3) or will forever be barred and disallowed.
7.8 Claims Cap:
The Claims of all Creditors who have been properly scheduled and/or who have filed Claims
shall be capped at the amount set in the schedules or proof of Claim as of the Confirmation Date.
Unless specifically provided for under the Plan, no Creditor may amend a Claim after the
Confirmation Date to increase the amount asserted against the Debtor or the Estate, unless such
Creditor seeks approval of the Court and the Court allows such amendment by Final Order.
7.9 Unclaimed Distributions and Claim Waiver:
The Post-Confirmation Debtor may draw checks constituting payments due under this Plan so
that such checks will automatically become void if not presented to the payor bank for payment
within 90 days after the date of the check. Unless the Court for cause otherwise directs, if any
such check is properly mailed to the payees last known address within twenty (20) days after its
date and thereafter becomes void, the Claim with respect to which the check was issued shall be
deemed withdrawn and disallowed, and the holder shall be barred from seeking further recovery on
account of that Claim and the unclaimed distribution shall become available for distribution to
known holders of Allowed Claims as applicable. Provided, however, if the Post-Confirmation
Debtor later determines in its sole discretion that it is not economically prudent to redistribute
such unclaimed or returned funds, such funds shall be considered and treated as unclaimed property
under Bankruptcy Code section 347(a).
7.10 DeMinimis Distributions:
Notwithstanding anything to the contrary in this Plan, the Post-Confirmation Debtor is not
required to deliver a payment to the holder of an Allowed Claim if the amount of cash due is less
than $20.00. The Post-Confirmation Debtor may round all amounts for
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distribution to the nearest whole dollar.
ARTICLE 8
EXECUTORY CONTRACTS AND LEASES
EXECUTORY CONTRACTS AND LEASES
8.1 A list of the executory contracts and unexpired leases to be assumed, and to the extent
necessary assigned, to the Post-Confirmation Debtor, or to be rejected, on the Effective Date of
the Plan will be filed and served by the Debtor at least 30 days prior to the hearing on
confirmation of the Plan. Except as otherwise provided in the Plan or other order of the Court
prior to Confirmation, all executory contracts and unexpired leases of the Debtor entered into
prior to the Petition Date which are not assumed or rejected pursuant to Bankruptcy Code section
365 prior to the Confirmation Date shall be deemed rejected upon the Effective Date. Specifically,
the Debtor hereby rejects all of the executory contracts and unexpired leases listed on the
Debtors Schedule G, as amended, except those that have been specifically assumed during the
Bankruptcy Case. Each non-debtor party to an executory contract or unexpired lease rejected
hereunder shall have thirty (30) days subsequent to the Confirmation Date to file a proof of Claim
with the Court asserting damages arising from such rejection.
ARTICLE 9
EFFECT OF CONFIRMATION
EFFECT OF CONFIRMATION
9.1 Discharge:
Pursuant to section 1141(d)(3) of the Bankruptcy Code, the confirmation of the Plan shall not
discharge Claims against the Debtor. However, any actions against the Debtor, Post-Confirmation
Debtor, the Estate, the Plan Administrator, the Debtor in Possession, or properties or interests in
properties of any of the foregoing are enjoined pursuant to and to the extent provided by paragraph
6.15 of the Plan.
9.2 Creditors Committee Continuation:
On and after the Effective Date, the Creditors Committee shall continue in existence and
operate under its current by-laws and with the same bankruptcy counsel with all powers and duties
as set forth in the Bankruptcy Code, unless its current members decline to serve or as otherwise
ordered by the Court upon noticed motion by any party in interest. Post-
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confirmation compensation for Counsel for the Creditors Committee shall be governed by section
6.10 et seq. The Post-Confirmation Creditors Committee shall supervise the liquidation of assets
proposed under the Plan. Counsel for the Creditors Committee may contact the counsel, special
counsel, or other professionals employed by Post-Confirmation Debtor on a periodic basis to
determine their progress in liquidating the assets of the estate, including the status of any
pending litigation, collection of assets, costs associated in connection with such liquidation,
and estimates as to further distributions. Except with respect to transactions or settlements
within the scope of Section 6.7 that do not require Court approval, the Post-Confirmation Debtor
and its counsel shall notify counsel for the Creditors Committee of any proposed settlements.
With respect to any settlement or other action that requires Court approval, the Creditors
Committee shall be notified of any such proposed action pursuant to Section 6.7 and the Creditors
Committee shall determine whether the Post-Confirmation Debtors proposed course of action or
inaction is in the best interest of the estate. If, in the discretion of the Creditors Committee,
the Post-Confirmation Debtor is not acting in the best interests of the estate, the Creditors
Committee shall have the ability to move for removal of the Plan Administrator or for conversion
of the case to Chapter 7 pursuant to the standards of 11 U.S.C. § 1112; provided, however, that no
such motion shall be brought before the lapse of 30 days after written notice of the Creditors
Committees concerns and the failure of Post-Confirmation Debtor to make adequate progress toward
resolving the stated concerns. In the absence of a Creditors Committee, any creditor shall have
standing to take any action specified in the preceding sentence.
ARTICLE 10
MODIFICATION OF PLAN
MODIFICATION OF PLAN
10.1 Pre-Confirmation Modification:
The Debtor may propose amendments or modifications of this Plan at any time prior to the
Confirmation Date consistent with Bankruptcy Code section 1127 and Rule 3019.
10.2 Post-Confirmation Modification With No Materially Adverse Effect:
After the Confirmation Date, the Post-Confirmation Debtor may, with approval of
Debtors First Amended
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the Court but without further notice and so long as it does not materially, adversely affect the
interest of Creditors, modify this Plan or remedy any defect or omission or reconcile any
inconsistency in the Plan in such a manner as may be necessary to carry out the purpose and intent
of this Plan.
10.3 Post-Confirmation Material Modification:
This Plan may be modified at any time after confirmation and before substantial consummation,
provided that this Plan, as modified, meets the requirements of sections 1122 and 1123 of the
Bankruptcy Code, and the Court, after notice and a hearing, confirms such Plan, as modified, under
section 1129 of the Bankruptcy Code, and the circumstances warrant such
modification.
ARTICLE 11
RETENTION OF JURISDICTION
RETENTION OF JURISDICTION
11.1 Retention of Jurisdiction:
Until the Case has been closed, and thereafter upon a motion to reopen the Case, the Court
shall have exclusive jurisdiction of all matters concerning the allowance of Claims, and the
interpretation and implementation of the Plan, pursuant to, and for all purposes of, sections
105(a) and 1142 of the Bankruptcy Code, including without limitation the following purposes:
(a) to hear and determine applications for the assumption or rejection of executory contracts
or unexpired leases, if any are pending on the Effective Date, and the allowance of Claims
resulting therefrom;
(b) to determine any and all Claims, causes of action, adversary proceedings, applications and
contested matters which are pending on the Effective Date or which are thereafter commenced by or
related to the Estates;
(c) to hear and determine any objection to, or requests for estimation of, Administrative
Expense Claims, Claims, or Interests;
(d) to enter and implement such orders as may be appropriate in the event that the
Confirmation Order is for any reason stayed, revoked, modified, or vacated;
(e) to issue such orders in aid of execution of the Plan, to the extent authorized by the
provisions of section 1142 of the Bankruptcy Code;
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(f) to consider any modifications of the Plan, to cure any defect or omission, or reconcile
any inconsistency in any order of the Court, including, without limitation, the Confirmation Order;
(g) to hear and determine all applications for Professional Fees accrued through the Effective
Date;
(h) to hear and approve any motions to approve sales free and clear of liens
post-confirmation, to the extent such approval is required under this Plan;
(i) to hear and determine disputes arising in connection with the interpretation,
implementation or enforcement of the Plan;
(j) to hear and determine matters concerning state, local and federal taxes in
accordance with sections 346, 505 and 1146 of the Bankruptcy Code; and
(k) to enter a final decree closing the Case, and orders reopening the Case as
appropriate.
PROPONENT: |
Dated: October 23, 2009
CAPITAL CORP OF THE WEST |
By | /s/ David A. Heaberlin | |||
David A. Heaberlin, Authorized Representative | ||||
APPROVED AS TO FORM.
FELDERSTEIN FITZGERALD
WILLOUGHBY & PASCUZZI, LLP
WILLOUGHBY & PASCUZZI, LLP
By
|
/s/ Paul J. Pascuzzi | |
Paul J. Pascuzzi | ||
Attorneys for Capital Corp of the West |
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