HomeMy WebLinkAboutUnited States Bankruptcy Court District of Delaware UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re: Chapter 11
WASHINGTON MUTUAL, INC., et al.,' Case No. 08 -12229 (MFW)
Debtors. (Jointly Administered)
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NOTICE OF (I) APPROVAL OF
SUPPLEMENTAL DISCLOSURE STATEMENT; (II) HEARING ON
CONFIRMATION OF THE MODIFIED PLAN; (III) ESTABLISHMENT
OF A NEW VOTING AND ELECTION RECORD DATE AND DEADLINE;
(IV) PROCEDURES AND DEADLINE FOR VOTING ON AND MAKING ELECTIONS
WITH RESPECT TO THE MODIFIED PLAN; (V) PROCEDURES FOR OBJECTING TO
CONFIRMATION OF THE MODIFIED PLAN; AND (VI) CERTAIN OTHER INFORMATION
TO PARTIES IN INTEREST IN THE CHAPTER 11 CASES OF:
Washington Mutual, Inc. (Case No. 08 -12229 (MFW)) and
WMI Investment Corp. (Case No. 08 -12228 (MFW)).
PLEASE TAKE NOTICE that:
1. Approval of Supplemental Disclosure Statement. On March 21, 2011, the United States Bankruptcy
Court for the District of Delaware (the "Court") held a hearing at which it approved the Supplemental
Disclosure Statement for the Modified Sixth Amended Joint Plan of Affiliated Debtors Pursuant to
Chapter 11 of the United States Bankruptcy Code, dated March 25, 2011 (as amended, the
"Supplemental Disclosure Statement" ) of Washington Mutual, Inc. and WMI Investment Corp., as
debtors and debtors in possession (collectively, the "Debtors "), and thereafter entered an order (the
"Order ") with respect thereto. The Order authorizes the Debtors to solicit votes and elections with
respect to the Modified Sixth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the
United States Bankruptcy Code, dated as of February 7, 2011 (as it has and may be further amended,
the "Modified Plan").
2. Confirmation Hearing. A hearing (the "Confirmation Hearing ") to consider confirmation of the
Modified Plan will commence at 9:30 a.m. (Eastern Time) on June 6, 2011, before the Honorable
Mary F. Walrath, United States Bankruptcy Judge, in the United States Bankruptcy Court for the
District of Delaware, 824 North Market Street, 5th Floor, Wilmington, Delaware 19801 (the
`Bankruptcy Court"). The Confirmation Hearing may be adjourned or continued from time to time
without further notice other than the announcement by the Debtors of the adjourned date(s) at the
Confirmation Hearing or any continued hearing or as indicated in any notice of agenda of matters
1 The Debtors in these chapter 11 cases along with the last four digits of each Debtor's federal tax identification
number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI Investment Corp. (5395). The Debtors' principal
offices are located at 925 Fourth Avenue, Seattle, Washington 98104.
2 Capitalized teens used but not defined herein shall have the meanings ascribed to them in the Supplemental
Disclosure Statement or, if not defined in the Supplemental Disclosure Statement, in the Modified Plan.
scheduled for hearing filed by the Debtors with the Bankruptcy Court. The Modified Plan may be
modified, if necessary, prior to, during, or as a result of the Confirmation Hearing.
3. Record Date for Voting and Election Purposes. Holders of JPMC Rabbi Trust/Policy Claims
(Class 5), Other Benefit Plan Claims (Class 6), WMB Vendor Claims (Class 8), Visa Claims
(Class 9), Bond Claims (Class 10), WMI Vendor Claims (Class 11), General Unsecured Claims
(Class 12), Late -Filed Claims (Class 12A), Convenience Claims (Class 13), and Subordinated Claims
(Class 18) who hold claims against the Debtors as of March 16, 2011 (the "General Record Date ") are
entitled to vote on the Modified Plan. Holders of Senior Notes Claims (Class 2), Senior Subordinated
Notes Claims (Class 3), CCB -1 Guarantees Claims (Class 14), CCB -2 Guarantees Claims (Class 15),
PIERS Claims (Class 16), and Preferred Equity Interests (Class 20), who hold claims against or
interests in the Debtors as of the Voting and Election Deadline (as defined herein) are entitled to vote
on the Modified Plan.
Notwithstanding the foregoing, record holders, as of the General Record Date or the Voting and
Election Deadline, as applicable, are only entitled to vote if they are
a) record holders of claims listed on the Debtors' schedules of liabilities, to the extent that such
claims (i) are listed in an amount greater than zero and are not identified as contingent,
unliquidated or disputed, and (ii) have not been superseded by a filed proof of claim; or
b) record holders of claims, to the extent that such claims (i) are the subject of timely filed
proofs of claim, (ii) have not been disallowed, expunged, disqualified or suspended prior to
the General Record Date or the Voting and Election Deadline, as applicable, and (iii) are not
the subject of a pending claim objection or request for estimation as of March 16, 2011,
unless a Rule 3O18(a) Motion (as defined below) has been filed.
4. Voting and Election Deadline. All votes to accept or reject and all elections with respect to the
Modified Plan must be actually received by the Debtors' voting and tabulation agent, Kurtzman
Carson Consultants LLC, at the applicable address set forth below, by no later than 5:00 p.m.
(Pacific Time) on May 13, 2011 (the "Voting and Election Deadline "). Any failure to follow the
instructions included with your Ballot or Election Form, as the case may be, may disqualify your
Ballot, your vote, and/or your elections.
Master Ballots:
Washington Mutual Ballot Processing
c/o Kurtzman Carson Consultants
599 Lexington Avenue, 39th Floor
New York, New York 10022
All Other Ballots:
Washington Mutual Ballot Processing
c/o Kurtzman Carson Consultants
2335 Alaska Avenue
El Segundo, California 90245
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5. Parties in Interest Not Entitled to Vote. Holders of unimpaired claims in classes deemed to accept
the Modified Plan and holders of claims and equity interests in classes deemed to reject the
Modified Plan are not entitled to vote and will not receive a Ballot. Further, holders of Claims in
Class 17A and Class 19 are similarly not entitled to vote and will not receive a Ballot. Such
holders instead will receive a Notice of Non- Voting Status rather than a Ballot. If you have
timely filed a proof of claim and disagree with either (a) the Debtors' objection to your claim and
believe that you should be entitled to vote on the Plan or (b) the Debtors' classification or request
for estimation of your claim and believe that you should be entitled to vote on the Modified Plan
in a different amount or class, then you must serve on the parties identified in paragraph 6 below
and file with the Court a motion (a "Rule 3018(a) Motion ") for an order pursuant to Rule 3018(a)
of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules ") temporarily allowing
your claim in a different amount or in a different class for purposes of voting to accept or reject
the Modified Plan. All Rule 3018(a) Motions must be filed on or before the 10th day after
service of notice of an objection or request for estimation, if any, as to your claim, but in no event
later than April 15, 2011. As to any creditor filing a Rule 3018(a) Motion, such creditor's Ballot
will not be counted except as may be otherwise ordered by the Bankruptcy Court. Creditors may
contact Kurtzman Carson Consultants LLC at (888) 830 - 4644 to receive an appropriate Ballot for
any claim for which a proof of claim has been timely filed and a Rule 3018(a) Motion has been
granted. Rule 3018(a) Motions that are not timely filed and served in the manner set forth above
shall not be considered.
6. Objections to Confirmation.
The deadline to object or respond to confirmation of the Modified Plan is May 13, 2011 at
4:00 p.m. (Eastern Time) (the "Objection Deadline ").
Objections and responses, if any, to confirmation of the Modified Plan, must (a) be in writing, (b)
conform to the Bankruptcy Rules and the Local Rules, (c) set forth the name of the objecting
party, the nature and amount of claims or interests held or asserted by the objecting party against
the Debtors' estates or property, and (d) provide the basis for the objection and the specific
grounds therefore.
Registered users of the Bankruptcy Court's case filing system must electronically file their
objections and responses. All other parties in interest must file their objections and responses in
writing with the Bankruptcy Court, 824 Market Street, 3rd Floor, Wilmington, Delaware 19801
(Attn: Chambers of the Hon. Mary F. Walrath).
Any objections or responses must also be served upon the following parties so as to be received
by no later than the Objection Deadline:
Debtors Office of the U.S. Trustee
Washington Mutual, Inc. Office of the U.S. Trustee for the D. Del.
925 Fourth Avenue 844 King Street, Suite 2207, Lockbox 35
Seattle, Washington 98104 Wilmington, Delaware 19899 -0035
Attn: Charles Edward Smith, Esq. Attn: Jane Leamy, Esq.
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Counsel to the Debtors Co- Counsel to the Debtors
Weil, Gotshal & Manges LLP Richards Layton & Finger P.A.
767 Fifth Avenue One Rodney Square
New York, New York 10153 920 North King Street
Attn: Brian S. Rosen, Esq. Wilmington, Delaware 19899
Attn: Mark D. Collins, Esq. '
Special Litigation and Conflicts Counsel to the Debtors
Quinn Emanuel Urquhart & Sullivan, LLP
55 Madison Avenue, 22nd Floor
New York, New York 10010
Attn: Peter Calamari, Esq.
Counsel to the Equity Conunittee Co- Counsel to the Equity Conunittee
Busman Godfrey LLP Ashby & Geddes, P.A.
1201 Third Ave., Suite 3800 500 Delaware Avenue, 8th Floor
Seattle, WA 98101 P.O. Box 1150
Atha: Justin A. Nelson, Esq. Wilmington, Delaware 19899
Attn: William P. Bowden, Esq.
Counsel to the Creditors' Conunittee Co-Counsel to the Creditors' Conunittee
Akin Gump Stauss Hauer & Feld LLP Pepper Hamilton LLP
One Bryant Park Hercules Plaza Ste 5100
New York, New York 10036 1313 N. Market Street
Attn: Fred S. Hodara, Esq. Wilmington, Delaware 19801
Attn: David B. Stratton, Esq.
Counsel to JPMorgan Chase Co- Counsel to JPMorgan Chase
Sullivan & Cromwell LLP Landis Rath & Cobb LLP
125 Broad Street 919 Market Street, Suite 1800
New York, New York 10004 P.O. Box 2087
Attn: Stacey R. Friedman, Esq. Wihnington, DE 19899
Attn: Adam G. Landis, Esq.
Counsel to FDIC j Co- Counsel to FDIC
DLA Piper LLP (US) Young Conaway Stargatt & Taylor, LLP
1251 Avenue of the Americas The Brandywine Building
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New York, New York 10020 1000 West Street, 17th Floor
Attn: Thomas R. Califano, Esq. ! Wihnington, Delaware 19801
Attn: M. Blake Cleary, Esq.
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IF ANY OBJECTION TO CONFIRMATION OF THE MODIFIED PLAN IS NOT
FILED AND SERVED STRICTLY AS PRESCRIBED HEREIN, THE OBJECTING PARTY
MAY BE BARRED FROM OBJECTING TO CONFIRMATION OF THE MODIFIED PLAN
AND MAY NOT BE HEARD AT THE HEARING.
7. Parties That Will Not Be Entitled to Vote or Receive Any Distribution. Any holder of a Claim that
is scheduled in the Debtors' schedules of assets and liabilities, statements of financial affairs and
schedules of executory contracts and unexpired leases at $0, or in an unknown amount, or as
disputed, contingent, or unliquidated, and that has not filed a timely proof of claim, shall not be
treated as a creditor with respect to such Claim for purposes of receiving distributions under the
Modified Plan. PLEASE NOTE THAT, NOTWITHSTANDING YOUR FAILURE TO FILE A
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PROOF OF CLAIM OR BE SCHEDULED, YOUR RIGHTS MAY NEVERTHELESS BE
IMPAIRED BY THE MODIFIED PLAN.
8. Additional Information. Any party in interest wishing to obtain information about the solicitation
procedures or copies of the Prior Disclosure Statement, the Supplemental Disclosure Statement,
or the Modified Plan should contact the Debtors' voting agent, Kurtzman Carson Consultants
LLC at (888) 830 - 4644. Interested parties may also examine the Prior Disclosure Statement, the
Supplemental Disclosure Statement, and the Modified Plan free of charge at
www.kccllc.netlwamu. In addition, the Prior Disclosure Statement, the Supplemental Disclosure
Statement, and the Modified Plan are on file with the Court and may be examined by accessing
the Court's website: www.deb.uscourts.gov. Note that a PACER password and login are needed
to access documents on the Court's website. A PACER password can be obtained at:
www.pacer.psc.uscourts.gov.
9. Executory Contracts.
a) Cure of Defaults for Assumed Executory Contracts and Unexpired Leases: Except to the
extent that different treatment has been agreed to by the non - debtor party or parties to any
executory contract or unexpired lease to be assumed or assumed and assigned pursuant to
Section 36.1 of the Modified Plan, the Debtors will within at least (20) days prior to the
Confirmation Hearing, file with the Bankruptcy Court and serve by first class mail on each
non - debtor party to such executory contracts or unexpired leases to be assumed pursuant to
Section 36.1 of the Modified Plan, a notice, which shall include the cure amount as to each
executory contract or unexpired lease to be assumed or assumed and assigned. If you are a
party to such executory contracts or unexpired leases to be assumed or assumed and
assigned by the Debtors, you must file and serve any objection to the assumption or the
cure amounts listed by the Debtors within twenty (20) days of the date of service of such
notice. If there are any objections filed, the Bankruptcy Court shall hold a hearing on a date
to be set by the Bankruptcy Court. Notwithstanding Section 36.1 of the Modified Plan, the
Debtors retain their rights to reject any of their executory contracts or unexpired leases that
are subject to a dispute concerning the amounts necessary to cure any defaults as of the
Effective Date.
b) Bar Date for Filing Proofs of Claim Relating to Executory Contracts and Unexpired
Leases Rejected Pursuant to the Modified Plan: Proofs of Claim for damages, if any,
arising out of the rejection of an executory contract or unexpired lease pursuant to the
Modified Plan, if not already evidenced by a filed proof of Claim, must be filed with the
Bankruptcy Court and served upon the attorneys for the Debtors, Weil, Gotshal & Manges
LLP, 767 Fifth Avenue, New York, New York 10153 (Attn: Brian S. Rosen, Esq.), or the
Liquidating Trustee, no later than thirty (30) days after the later of (a) the date of entry of an
order approving the rejection of such executory contract or unexpired lease, or (b) the date of
entry of the Confirmation Order. All such proofs of Claim not filed within such time will
be forever barred from assertion against the Debtors, or their properties or agents,
successors, or assigns, including, without limitation, the Reorganized Debtors and the
Liquidating Trust.
10. Releases and Injunctions.
The Modified Plan contains releases of certain persons and entities, including, among
others, the Debtors, JPMC, and the FDIC all as more specifically set forth in the Modified Plan,
together with an injunction which, among other things, states that all Entities who have held, hold
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or may hold Claims or any other debt or liability that is discharged or Equity Interests or other
right of equity interest that is terminated or cancelled pursuant to the Modified Plan or the Global
Settlement Agreement, or who have held, hold or may hold Claims or any other debt or liability
that is discharged or released pursuant to Section 43.2 hereof, are permanently enjoined, from and
® after the Effective Date, from (a) commencing or continuing, directly or indirectly, in any manner,
any action or other proceeding (including, without limitation, any judicial, arbitral, administrative
or other proceeding) of any kind on any such Claim or other debt or liability that is discharged or
Equity Interest that is terminated, cancelled, assumed or transferred pursuant to the Plan against
any of the Released Parties or any of their respective assets, property or estates, (b) the
enforcement, attachment, collection or recovery by any manner or means of any judgment, award,
decree or order against any of the Released Parties or any of their respective assets, property or
estates on account of any Claim or other debt or Liability that is discharged or Equity Interest that
is terminated, cancelled, assumed or transferred pursuant to the Plan, (c) creating, perfecting, or
enforcing any encumbrance of any kind against any of the Released Parties or any of their
respective assets, property or estates on account of any Claim or other debt or liability that is
discharged or Equity Interest that is terminated, cancelled, assumed or transferred pursuant to the
Plan, and (d) except to the extent provided, permitted or preserved by sections 553, 555, 556, 559 or
560 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 any of the
Released Parties or any of their respective assets, property or estates, with respect to any such
Claim or other debt or liability that is discharged or Equity Interest that is terminated, cancelled,
assumed or transferred pursuant to the Modified Plan, including as follows:
"43.6 Releases by Holders of Claims.
(a) Global Third Party Releases. Except as otherwise expressly provided in the Confirmation Order, on the Effective
Date, for good and valuable consideration, and to the fullest extent permissible under applicable law, each Entity that (i) has
held, currently holds or may hold a Released Claim, (ii) is entitled to receive, directly or indirectly, a distribution or
satisfaction of its claim pursuant to the Plan, and (iii) elects, by not checking or checking the appropriate box on its Ballot or
election form, as the case may be, to grant the releases set forth in this Section 43.6, on their own behalf and on behalf of
anyone claiming through them, shall be deemed to have and hereby does irrevocably and unconditionally, fully, finally and
forever waive, release, acquit and discharge each and all of the Released Parties from any and all Released Claims and/or any
claim, act, fact, transaction, occurrence, statement, or omission in connection with or alleged in the Actions or in the Texas
Litigation, or that could have been alleged in respect of the foregoing or other similar proceeding, including, without
limitation, any such claim demand, right, liability, or cause of action for indemnification, contribution or any other basis in
law or equity for damages, costs or fees incurred by the releasors herein arising directly or indirectly from or otherwise
relating thereto; provided, however, that each Entity that has elected not to grant the releases set forth in this Section
43.6, including, without limitation, any Entity that fails to execute and deliver a release following notice in accordance
with the provisions of Section 32.6(c) hereof, shall not be entitled to, and shall not receive, any payment, distribution or
other satisfaction of its claim pursuant to the Plan; and, provided, further that, notwithstanding anything contained in this
Section 43.6(a) to the contrary, the foregoing release shall not extend to acts of gross negligence or willful misconduct of any
Released Parties (other than with respect to the JPMC Entities and their respective Related Persons); and, provided, further,
that, notwithstanding the foregoing, solely for purposes of this Section 43.6(a), "Released Parties" shall not include Related
Persons other than (i) Related Persons of the JPMC Entities and (ii) Related Persons of the FDIC Receiver and FDIC
Corporate."
Several creditors and parties in interest have opposed the breadth and scope of the Modified Plan's proposed releases and
contend that they are not in accordance with applicable law.
"43.7 Injunction Related to Releases. Except as provided in the Plan or the Confirmation Order, as of the Effective Date,
all Entities that hold, have held, or may hold a Released Claim or Equity Interest that is released pursuant to Section 43.6 of
the Plan, are, and shall be, permanently, forever and completely stayed, restrained, prohibited, barred and enjoined from
taking any of the following actions, whether directly or indirectly, derivatively or otherwise, on account of or based on the
subject matter of such discharged Released Claims or such Equity Interests: (i) commencing, conducting or continuing in any
manner, directly or indirectly, any suit, action or other proceeding (including, without limitation, any judicial, arbitral,
administrative or other proceeding) in any forum; (ii) enforcing, attaching (including, without limitation, any prejudgment
attachment), collecting, or in any way seeking to recover any judgment, award, decree, or other order, (iii) creating, perfecting
or in any way enforcing in any matter, directly or indirectly, any Lien; (iv) setting off, seeking reimbursement or contributions
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from, or subrogation against, or otherwise recouping in any manner, directly or indirectly, any amount against any liability or
obligation owed to any Entity released under Section 43.6 hereof, and (v) commencing or continuing in any manner, in any
place of any judicial, arbitration or administrative proceeding in any forum, that does not comply with or is inconsistent with
the provisions of the Plan or the Confirmation Order."
"43.8 Exculpation. The Debtors, the Debtors' officers and directors serving during the period from the Petition Date up to
and including the Effective Date, the Creditors' Committee and each of its members in their capacity as members of the
Creditors' Committee, the Equity Committee and each of its members in their capacity as members of the Equity Committee,
and each of their respective professionals shall not have or incur any liability to any Entity for any act taken or omitted to be
taken in connection with the Chapter 11 Cases (including any actions taken by the Creditors' Committee after the Effective
Date), the formulation, preparation, dissemination, implementation, confirmation or approval of the Plan or any compromises
or settlements contained therein, the Disclosure Statement and the Supplemental Disclosure Statement related thereto, the
Global Settlement Agreement, or any contract, instrument, release or other agreement or document provided for or
contemplated in connection with the consummation of the transactions set forth in the Plan and the Global Settlement
Agreement; provided, however, that the foregoing provisions of this Section 43.8, shall not affect the liability of any Entity
that otherwise would result from any such act or omission to the extent that such act or omission is determined in a Final
Order to have constituted gross negligence or willful misconduct; and, provided, further, that, unless otherwise ordered by the
Bankruptcy Court in connection with the Dime Warrant Litigation, the foregoing provisions of this Section 43.8 shall not
affect the liability of any member of the Debtors' Board of Directors and officers with respect to actions asserted in the Dime
Warrant Litigation and relating to the period from the Petition Date up to and including the Effective Date. Nothing in the
foregoing Section 43.8 shall prejudice the right of any of the Debtors, the Debtors' officers and directors serving during the
period from the Petition Date up to and including the Effective Date, the Creditors' Committee and each of its members in
their capacity as members of the Creditors' Committee, the Equity Committee and each of its members in their capacity as
members of the Equity Committee, and each of their respective professionals to assert reliance upon advice of counsel as a
defense with respect to their duties and responsibilities under the Plan."
If you do not object to the Modified Plan or if your objections are overruled, you will be bound by
the confirmation of the Modified Plan. HOLDERS OF CLAIMS WHO CHOOSE TO NOT
GRANT THE RELEASES PROVIDED IN SECTION 43.6 OF THE MODIFIED PLAN, WILL
NOT BE ELIGIBLE TO RECEIVE A DISTRIBUTION PURSUANT TO THE MODIFIED PLAN.
DATED: March 30, 2011
Wilmington, Delaware
RICHARDS, LAYTON & FINGER, P.A. WEIL, GOTSHAL & MANGES LLP
One Rodney Square 767 Fifth Avenue
920 North King Street New York, New York 10153
Wilmington, Delaware 19801 Telephone: (212) 310 -8000
Telephone: (302) 651 -7700 Facsimile: (212) 310 -8007
Facsimile: (302) 651 -7701
Attorneys for Debtors
and Debtors in Possession
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Washington Mutual, Inc.
c/o Kurtzman Carson Consultants LLC
2335 Alaska Ave
El Segundo, CA 90245
005404
o PRF 38948 0005986
CITY OF WINTER SPRINGS
1126E STATE RD 434
WINTER SPRINGS FL 32708
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