AGREEMENT
between
XXXXXX CORPORATION
and
PENSION BENEFIT GUARANTY CORPORATION
This AGREEMENT ("Agreement") is dated as of March 24, 1999, by
and between XXXXXX CORPORATION, a Delaware Corporation ("Xxxxxx"), and the
Pension Benefit Guaranty Corporation ("PBGC").
W I T N E S S E T H
WHEREAS, the PBGC is a wholly-owned United States Government
corporation, created under Title IV of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), which guarantees the payment of certain
pension benefits upon termination of those pension plans to which Title IV
applies;
WHEREAS, Xxxxxx is the "contributing sponsor" (as defined in
Section 4001(a)(13) of ERISA) of the Xxxxxx Corporation Retirement Plan (the
"Retirement Plan") and the Xxxxxx Corporation Pension Plan (the "Pension Plan"
and together with the Retirement Plan, the "Plans");
WHEREAS, as a result of the closing, on or about June 1, 1996,
of Xxxxxx'x Xxxxxxxx Company division, the number of active participants in the
Pension Plan was, as of such date, reduced to less than eighty percent (80%) of
the number of active participants in such Plan as of January 1, 1996, which
resulted in the occurrence of a reportable event (the "Xxxxxxxx Reportable
Event") with respect to the Pension Plan and in respect of which Xxxxxx provided
notice to the PBGC pursuant to Section 4043 of ERISA;
WHEREAS, in connection with the consummation of the First
Amended Chapter 11 Plan of Reorganization for Xxxxxx, dated February 3, 1999
(the "Plan of Reorganization"), Xxxxxx intends, prior to and/or following the
effective date (the "Effective Date") of the Plan of Reorganization, to sell or
otherwise dispose of certain of its businesses not related to the Xxxxx Xxxxx
menswear business, specifically, the non-Xxxxx Xxxxx dress shirt business, the
Children's Group and the Bottoms Division and Accessories Division of Xxxxxx'x
Menswear Group (each such sale or disposition a "Proposed Transaction" and all
such sales and dispositions the "Proposed Transactions");
WHEREAS, the consummation of one or more of the Proposed
Transactions may result in the occurrence of one or more additional reportable
events (the "Potential Reportable Events" and together with the Xxxxxxxx
Reportable Event, the "Reportable Events") with respect to either or both of the
Plans;
WHEREAS, each of the Plans is covered under Title IV of ERISA;
WHEREAS, in December 1998, Xxxxxx filed a voluntary petition
with the United States Bankruptcy Court for the Southern District of New York
(the "Bankruptcy Court") for relief under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code");
WHEREAS, the PBGC has filed proofs of claim in In Re Xxxxxx
Corporation, Case No. 98-10107 (CB), now pending in the Bankruptcy Court (the
"Chapter 11 Case") on behalf of itself and the Plans;
WHEREAS, (i) claim number 13 held by the PBGC attached hereto
as Exhibit 1 is for the termination liability that the PBGC asserts would be
owed by Xxxxxx to the PBGC pursuant to Sections 4062 and 4068 of ERISA, 29
U.S.C. Sections 1362 and 1368, upon a termination of either or both of the
Plans; (ii) claim numbers 15 and 16 held by the PBGC attached hereto as Exhibits
2 and 3, respectively, are for the minimum funding contributions that the PBGC
asserts are owed by Xxxxxx to the Plans pursuant to Section 302 of ERISA, 29
U.S.C. Section 1082, and Section 412 of the Internal Revenue Code of 1986, as
amended (the "Code"), 26 U.S.C. Section 412; (iii) claim number 17 held by the
PBGC attached hereto as Exhibit 4 is for the premiums, interest and penalties
that the PBGC asserts are owed by Xxxxxx to the PBGC pursuant to Sections
4007(a), (b) and (e) of XXXXX, 00 X.X.X. 0000(x), (x) xxx (x), xxx XXXX
Regulation Section 4007.12(a), 29 C.F.R. Section 4007.12(a); and (iv) claim
number 439 held by the PBGC attached hereto as Exhibit 5 is for the liability
that the PBGC asserts may be owed by Xxxxxx pursuant to Section 4063 of ERISA,
29 U.S.C. Section 1363, as a result of the occurrence of the Reportable Events
(claim numbers 13, 15 through 17 and 439 collectively the "Filed Claims"); and
WHEREAS, Xxxxxx and the PBGC desire to address the issues
giving rise to the claims, and eliminate the need for the PBGC to have any
claims, including, without limitation, the Filed Claims, relating to the Plans
and arising out of any state of facts existing or event occurring on or before
Effective Date; and
WHEREAS, Xxxxxx and the PBGC believe that entering into this
Agreement is in the best interests of the participants of the Plans, Xxxxxx and
the PBGC;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein, the receipt, adequacy and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
Xxxxxx, as Debtor and on behalf of the Reorganized Xxxxxx, and the PBGC hereby
agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Agreement" shall have the meaning set forth in the Preamble hereto.
"Code" shall have the meaning set forth in the Recitals hereto.
"ERISA" shall have the meaning set forth in the Recitals hereto.
"IRS Agreement" means the agreement made as of July 13, 1994, among Xxxxxx
and Xxxxxx Xxxxx, Inc. and the Internal Revenue Service as in effect from time
to time.
"Letter of Credit" shall have the meaning set forth in Section 3(a) hereof.
"PBGC" shall have the meaning set forth in the Preamble hereto.
"Pension Plan," "Retirement Plan" and "Plans" shall have the meanings set
forth in the Recitals hereto.
"Plan Year" means for each Plan, the calendar year, or such other
twelve-month period specified in each Plan as amended, supplemented or modified
from time to time.
"Replacement Letter of Credit" shall have the meaning set
forth in Section 3(b) hereof.
"Reportable Event" shall have the meaning set forth in the Recitals hereto.
"Xxxxxx" shall have the meaning set forth in the Preamble hereto.
"Termination Date" shall have the meaning set forth in Section 4 hereof.
"Termination Liability" means the joint and several liability
of Xxxxxx and each member of its "controlled group" (within the meaning of
Section 4001(a)(14) of ERISA) under Section 4062 of ERISA in respect of the
Plans determined as of the date of the termination of the Plans under Section
4048 of ERISA during the term of the Agreement.
"Total Unfunded Liabilities" means aggregate unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA) with respect to both of
the Plans, and disregarding a Plan with no unfunded benefit liabilities.
2. Effectiveness of this Agreement.
This Agreement is enforceable pursuant to its terms, and is contingent upon
consummation of the Plan of Reorganization; provided, however, that in no event
shall this Agreement be effective without its having been approved by the
Bankruptcy Court, which approval shall be evidenced either by the confirmation
order or an order entered under Bankruptcy Rule 9019. Provided the Effective
Date shall have occurred, the effective date of this Agreement shall be as of
the date of entry of an order confirming the Plan of Reorganization. This is the
"PBGC Agreement" defined in Article One of the Plan of Reorganization, and
referred to in Section 6.5 of the Plan of Reorganization.
3. Letter of Credit to the PBGC.
(a) (i) General terms. On or before the effective date of this
Agreement, Xxxxxx will provide, a one-year renewable standby letter of credit
arranged by CIT Group/Commercial Services, Inc., or such other financial
institution as may be reasonably acceptable to the PBGC, in the form to be
mutually agreed upon prior to the Effective Date (the "Letter of Credit") in the
amount of $2.25 million to secure the obligations of Xxxxxx for the Termination
Liability.
(ii) Drawing on Letter of Credit. The PBGC may
draw on the Letter of Credit(or any Replacement Letter of Credit) only as
follows:
(A) Upon the receipt by the PBGC of a Notice of
Intent to Terminate one or both
of the Plans in a distress termination under Section 4041(c) of ERISA;
(B) Upon the issuance by the PBGC of a Notice of
Determination that one or both of the Plans should be terminated in an
involuntary termination under Section 4042 of ERISA; or
(C) Under the circumstances described in Section
3(b)(ii).
Any drawing on the Letter of Credit or the Replacement Letter
of Credit shall be pursuant to a Certificate for Drawing in the form to be
mutually agreed upon prior to the Effective Date delivered to the bank or other
financial institution issuing the Letter of Credit or the Replacement Letter of
Credit. The PBGC shall not present a Certificate for Drawing to the issuing
entity unless one of the conditions described in Section 3(a)(ii) have been
satisfied. The PBGC shall deliver a copy of any Certificate for Drawing to
Xxxxxx within one (1) business day of its presentment to the issuing bank.
(b) Replacement
(i) The Letter of Credit provided for in Section 3(a) shall provide that
the issuing entity shall notify the PBGC at least sixty (60) days in advance of
the anniversary date of the Letter of Credit as to whether or not the Letter of
Credit will be extended. If the issuing entity provides notice that the Letter
of Credit will not be extended, Xxxxxx shall obtain from a financial institution
reasonably acceptable to the PBGC a replacement letter of credit (substantially
identical in terms and identical in amount to the then outstanding Letter of
Credit) (the "Replacement Letter of Credit") for the benefit of the PBGC at
least thirty (30) days before the anniversary date of the Letter of Credit then
outstanding. Such Replacement Letter of Credit shall become effective upon the
anniversary date of the Letter of Credit then outstanding. Upon the issuance of
a Replacement Letter of Credit, it shall be deemed for purposes of this
Agreement to be a Letter of Credit issued pursuant to Section 3(a).
(ii) The Letter of Credit provided for in Section
3(a) shall further provide that
if, under the circumstances described in Section 3(b)(i), the Replacement Letter
of Credit is not obtained at least thirty (30) days before the anniversary date
of the Letter of Credit then outstanding, the PBGC may draw down the full amount
of the Letter of Credit within the thirty (30) day period prior to the
anniversary date.
(c) Amounts received by PBGC pursuant to a draw of any Letter
of Credit under this Agreement shall be held in an interest-bearing escrow
account maintained at the State Street Bank in the name of the PBGC. PBGC may
withdraw amounts after termination of the one or both of the Plans to satisfy
the Termination Liability thereunder. The amounts shall stay in the escrow
account and the escrow account shall not be closed until such time as:
(i) the Termination Liabilities under both of the Plan have been satisfied;
(ii) this Agreement expires in accordance with Section 4,
whichever event occurs soonest.
At the time the escrow account is closed, PBGC shall return any remaining
amounts held therein to Reorganized Xxxxxx, provided, however, that in the event
the termination of one or both of the Plans has been proposed as contemplated in
section 3(a)(ii)(A) or (B), but said plan termination has not been made final by
agreement or court order, and this Agreement expires in accordance with the
terms of Section 4, the escrow account shall not end until the proposed
termination action is complete and PBGC has had a reasonable opportunity to
apply amounts therein to the Termination Liability of one or both of the Plans,
if appropriate.
4. Term of Agreement.
This Agreement shall commence as provided in Section 2 and
will terminate upon the earliest of (a), (b), (c), or (d), below, provided that
Reorganized Xxxxxx is in full compliance with the Agreement, but in the case of
(a), (c), and (d), no earlier than five (5) years after the Effective Date of
the Plan of Reorganization (the "Termination Date"):
(a) The Total Unfunded Liabilities, as calculated at the end
of the Plan Year for two consecutive years, is zero (0); provided, however, that
if the Total Unfunded Liabilities of the Plan as of the last day of the Plan
Year for two consecutive years is less than $1,000,000, Xxxxxx will have
satisfied the conditions of this paragraph provided it has contributed in cash
an amount equal to the Total Unfunded Liabilities no later than September 15 of
the first calendar year following the end of such two-Plan-Year period; or
(b) The last date on which PBGC receives a Post Distribution Certification for
the Plans pursuant to 29 CFR ss. 4041.29 indicating that the Plans have been
successfully terminated in standard terminations under Section 4041(b) of ERISA;
or
(c) Upon receipt by PBGC of written evidence from the
applicable rating agencies that one of the following two conditions has been
satisfied:
(i) Xxxxxx has a rating on its unsecured debt at the rating level (or
better) of BBB from Standard & Poor's or Baa2 from Moody's;
(ii) In the event there is no such rating on its
unsecured debt, Xxxxxx obtains a
private rating on a hypothetical issue of unsecured debt of at least $50 million
at the rating level (or better) of BBB from Standard & Poor's or Baa2 from
Moody's; or
(d) If there is a change of the Xxxxxx controlled group for
purposes of Title IV of ERISA and the unsecured debt of the new controlled group
has been rated BBB by Standard & Poor's or Baa2 by Moody's, or better, for the
two consecutive years prior to a rating date (which rating date is subsequent to
the date of the change of the controlled group), and such ratings are reaffirmed
taking into account the change in the controlled group.
5. Notice and Information to PBGC.
Until this Agreement is terminated, Xxxxxx shall deliver or
cause to be delivered to the Director of the Corporate Finance & Negotiations
Department ("CFND") of the PBGC the following:
(a) Copies of any notices of reportable events at the time they are filed;
(b) Written notice no later than thirty (30) days prior to any
pension plan merger or spinoff or any transaction that would have the effect of
transferring more than three percent (3%) of the assets and liabilities of
either of the Plans;
(c) Written notice thirty (30) days prior to any change in any
of the Plans' actuarial assumptions or methods for the purpose of the minimum
funding standard of Section 412 of the Code, other than changes that are
required by law, which change shall be subject to PBGC's consent, with consent
not to be unreasonably withheld; PBGC shall communicate its response to any
requested changes within fifteen (15) days after the receipt by CFND of the
Xxxxxx notice.
(d) For each Plan Year, Form 5500 for each Plan (or its
successors), promptly after filing with the IRS, but no later than October 31 of
the following Plan Year and the most recent Actuarial Valuation Report for the
Plans within ten (10) days of its receipt by Xxxxxx, but not later than December
31 of that Plan Year.
(e) Copy of any amendment to a Plan or an appropriate summary thereof
within ten (10) days of adoption.
(f) Written notice of the date and amount of contributions
made to the Plans within ten (10) business days after the contribution is made
or written notice of failure to make any contribution within (5) business days
after the due date.
(g) Written notice within thirty (30) days prior to a
transaction that would result in a change in the Plans' contributing sponsor or
in Reorganized Xxxxxx'x controlled group.
(h) Written notice sixty (60) days prior to the anniversary
date of the issuance of any outstanding Letter of Credit as to whether or not
the Letter of Credit will be renewed.
6. Covenants and Agreements of Xxxxxx.
(a) From and after the Effective Date, the Reorganized Xxxxxx will assume
Xxxxxx'x obligations under ERISA with respect to the Pension Plans, including
becoming the contributing sponsor of the Pension Plans. The Reorganized Xxxxxx
intends to continue as the contributing sponsor of each of the Plans and, for so
long as it maintains the Plans, Reorganized Xxxxxx shall fund each of the Plans
in accordance with applicable law ( including, without limitation, the minimum
funding requirements set forth in Section 302 of ERISA and Section 412 of the
Code); provided, however, that nothing herein shall preclude the Reorganized
Xxxxxx (or any successor to the Reorganized Xxxxxx or to the business of
Reorganized Xxxxxx) from terminating or transferring the sponsorship of either
or both of the Plans in accordance with applicable law.
(b) The Reorganized Xxxxxx will continue to honor all of the terms and
conditions of the IRS Agreement, and shall continue to make all contributions
required to be made to each of the Plans under the IRS Agreement, as such
agreement shall from time to time be in effect.
(c) Xxxxxx agrees that its obligations to the Plans, including any
obligations under the IRS Agreement, shall not be discharged by reason of the
confirmation of the Plan of Reorganization, and such obligations shall remain in
full force and effect, and may be enforced against the Reorganized Xxxxxx in
accordance with applicable law regardless of any provision of the Plan of
Reorganization.
7. Covenants and Agreements of the PBGC.
(a) The Filed Claims shall be withdrawn by the PBGC no later than the
Effective Date and shall not be re-filed nor shall any additional proofs of
claims be filed by the PBGC in the Chapter 11 Case.
(b) In consideration of the covenants and agreements of Xxxxxx as provided
herein, the PBGC shall not take any action pursuant to Title IV of ERISA or
otherwise with respect to the Plans arising out of (i) any state of facts
existing or event occurring on or before the Effective Date or (ii) the
Reportable Events (whether occurring before or after the Effective Date).
(c) The PBGC will support confirmation of, and vote to accept, the Plan of
Reorganization, provided the Plan of Reorganization is not amended to change
substantively the obligations of Xxxxxx and the Reorganized Xxxxxx with respect
to the Plans or the PBGC.
8. Retention of Rights.
Nothing in this Agreement shall limit or impair the rights of the PBGC to
take any action in accordance with applicable law in respect of the Plans based
upon any event (other than the Reportable Events) occurring after the Effective
Date.
9. No Admission of Liability.
This Agreement is not and shall not be construed as or deemed to be an
admission or concession by or on the part of any party of any liability or the
applicability of any provision of ERISA or other applicable law in connection
with any matter described in this Agreement, and each party expressly denies any
liability whatsoever.
10. Notices.
Any notices, requests or other communication hereunder shall be in writing,
and shall be deemed to have been duly given when mailed by registered or
certified mail postage prepaid, or upon receipt if overnight delivery service or
facsimile is used, addressed as follows:
To the PBGC:
Director
Corporate Finance and Negotiations Department
Pension Benefit Guaranty Corporation
0000 X Xxxxxx X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
To Salant:
Xxxxxx Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx Xxxxx
With a copy to:
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
11. Miscellaneous.
(a) This Agreement constitutes the entire final agreement between the
parties hereto with respect to the matters provided for herein, and no other
agreement or understanding, written or oral, exists except as expressly set
forth herein.
(b) This Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the Code, ERISA and other
applicable federal law.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision or
provisions of this Agreement, which shall remain in full force and effect.
(d) This Agreement shall not be modified or amended, except by a written
instrument signed by the parties hereto.
(e) This Agreement shall inure to the benefit of, and may be enforced
solely by the parties hereto, and, in each case, their respective successors and
assigns.
(f) The captions used herein are for reference only and shall not in any
way affect the meaning or construction of any provision of this Agreement.
(g) This Agreement may be executed in any number of identical counterparts,
each of which shall be deemed an original as against the party who signed it,
and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties to this Agreement have caused
this Agreement to be duly executed and delivered by their respective duly
authorized officers as of the day and year indicated below.
XXXXXX CORPORATION
By:
Title:
PENSION BENEFIT GUARANTY CORPORATION
By:
Title:
EXHIBIT 1
FORM B10 (Official Form 10)(4/98)
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United States Bankruptcy Court SOUTHERN District of NEW YORK PROOF OF CLAIM
--------------------------------------------------------------------------------
Name of Debtor Case Number
XXXXXX CORPORATION 98-10107 (CB)
----------------------------------------------------------------
Note: This form should not be sued to make a claim for an
administrative expense arising after the commencement of the
case. A "request" for payment of an administrative expense may
be filed pursuant to 11 U.S.C. Section 503.
----------------------------------------------------------------
Name of Creditor (The person or [ ] Check box if you are
other entity to whom the debtor aware that anyone else
owes money or property): has filed a proof of
claim relating to your
PENSION BENEFIT GUARANTY claim. Attach copy
CORPORATION of statement giving
particulars.
-------------------------------------
Name and address where notices
should be sent: [X] Check box if you have
never received any
Pension Benefit Guaranty Corporation notices from the
Office of the General Counsel, bankruptcy court in
Attn: Xxxxx X. Xxxxx, Esq. this case.
0000 X. Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000 [ ] Check box if the
address differs from
the address on the
envelope sent to you
by the court.
Telephone number:
000-000-0000, ext. 3235
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Account or other number by which Check here [ ] replaces
creditor identifies debtor: if this claim [ ] amends a previously
filed claim,
dated: _______________
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1. Basis for Claim
[ ] Goods sold [ ] Retiree benefits as defined in
[ ] Services performed 11 U.S.C. Section 1114(a)
[ ] Money loaned [ ] Wages, salaries, and compensation
[ ] Personal injury/wrongful (fill out below)
death
[ ] Taxes Your SS#: _____ ______ _______
[X] Other Unpaid Compensation for services
Statutory liability performed
under 29 U.S.C. from ______________ to ______________
Sections 1362, 1368 (date) (date)
(see attached
statement)
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2. Date debt was incurred: 3. If court judgment, date obtained:
Arises on pension plan
termination (see attached
statement)
--------------------------------------------------------------------------------
4. Total Amount of Claim at Time Case Filed: $27,500,000
----------
If all or part of your claim is secured or entitled to priority, also
complete Item 5 or 6 below.
[ ] Check this box if claim includes interest or other charges in addition to
the principal amount of the claim. Attach itemized statement of all
interest or additional charges
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5. Secured Claim.
[ ] Check this box if your claim is secured by collateral (including a right of
setoff).
Brief Description of Collateral:
[ ] Real Estate [ ] Motor Vehicle
[ ] Other ___________________
Value of Collateral: $_____________________
Amount of arrearage and other charges at time case filed included in secured
claim, if any: $______________________
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6. Unsecured Priority Claim.
[X] Check this box if you have an unsecured priority claim
Amount entitled to priority $ 27,500,000
----------
Specify the priority of the claim:
[ ] Wages, salaries, or commissions (up to $4300), * earned within 90 days
before filing of the bankruptcy petition or cessation of the debtor's
business, whichever is earlier -- 11 U.S.C. Section 507(a)(3).
[ ] Contributions to an employee benefit plan -- 11 U.S.C. Section 507(a)(4).
[ ] Up to $1,950* of deposits toward purchase, lease, or rental of property
or services for personal, family, or household use -- 11 U.S.C.
Section 507(a)(6)
[ ] Alimony, maintenance, or support owed to a spouse, former spouse, or
child -- 11 U.S.C. Section 507(a)(7).
[X] Taxes or penalties owed to governmental units -- 11 U.S.C.
Section 507(a)(8).
[X] Other -- Specify applicable paragraph of 11 U.S.C. Section 507(a)
(1), 503(b)(1)
--------------
(see attached statement)
* Amounts are subject to adjustment on 4/1/98 and every 3 years thereafter
with respect to cases commenced on or after the date of adjustment.
--------------------------------------------------------------------------------
7. Credits: The amount of all payments on this THIS SPACE IS FOR
claim has been credited and deducted for COURT USE ONLY
the purpose of making this proof of claim.
8. Supporting Documents: Attach copies of
supporting documents, such as promissory
notes, purchase orders, invoices,
itemized statements of running accounts,
contracts, court judgments, mortgages,
security agreements, and evidence of
perfection of lien. DO NOT SEND
ORIGINAL DOCUMENTS. If the documents
are not available, explain. If the
documents are voluminous, attach
a summary.
9. Date-Stamped Copy: To receive an
acknowledgment of the filing of your
claim, enclose a stamped,
self-addressed envelope and copy
of this proof of claim.
-------------------------------------------------
Date Sign and print the name and title,
if any, of the creditor or other
person authorized to file this
claim (attach copy of power of
attorney, if any):
Xxxxxxx X. Xxxxxxxxx
Assistant General Counsel
--------------------------------------------------------------------------------
Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment
for up to 5 years, or both. 18 U.S.C. Sections 152 and 3571.
--------------------------------------------------------------------------------
Xxxxx X. Xxxxx (BJ-2184)
Pension Benefit Guaranty Corporation
Office of the Counsel
0000 X Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000, ext. 3235
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE
XXXXXX CORPORATION,
Debtor.
Chapter 11
Case No. 98B 10107(CB)
STATEMENT IN SUPPORT OF CLAIM
The Pension Benefit Guaranty Corporation ("PBGC") hereby sets forth
its claim against Xxxxxx Corporation (hereinafter the "Debtor"), stating:
1. PBGC is a wholly-owned United States Government corporation created
under Title IV of the Employee Retirement income Security Act of 1974 ("ERISA"),
29 U.S.C. xx.xx. 1301-1461 (1994 and Supp. II 1996), to administer the mandatory
pension plan termination insurance program established under Title IV of ERISA.
The PBGC guarantees the payment of certain pension benefits upon termination of
a pension plan to which Title IV applies. See 29 U.S.C. xx.xx. 1321, 1322.
2. The Xxxxxx Corporation Pension Plan (the "Hourly Plan") and the
Xxxxxx Corporation Retirement Plan (the "Salaried Plan") (collectively the
"Plans") are tax-qualified, single employer, defined benefit pension plans
covered by Title IV of ERISA. 29 U.S.C. ss. 1321.
3. The Debtor is the contributing sponsor of the Plans, within the
meaning of 29 U.S.C. ss. 1301(a)(13).
4. This claim is contingent on the termination of either of the Plans,
or both, in accordance with 29 U. S.C. xx.xx. 1341 (c), 1342, prior to the
effective date of a plan of reorganization. If and when date(s) of plan
termination is/are established, pursuant to 29 U.S.C. ss. 1348, the PBGC will
amend this claim as necessary.
5. On information and belief, the assets of each of the Plans are not
sufficient to discharge when due all of the benefit liabilities of that pension
plan.
6. Under 29 U.S.C. ss. 1362(b), the contributing sponsor of a plan and
each member of the contributing sponsor's controlled group is jointly and
severally liable to the PBGC for the amount by which the assets of a terminated
pension plan are insufficient to cover the plan's benefit liabilities to
participants on the date of plan termination ("Unfunded Benefit Liabilities"),
plus interest from the termination date.
7. Under 29 U.S.C. ss. 1368, if any liable party fails to pay the
amount of its debt under 29 U.S.C. ss. 1362(b), after demand by the PBGC, the
PBGC has a lien to the extent such amount does not exceed 30 percent of the
collective net worth of all persons described in ERISA ss. 4062(a), 29 U.S.C.
ss.1362(a). The lien created by 29 U.S C. ss. 1368 arises as of the date of plan
termination on all property and rights to property of those persons and is
"treated in the same manner as a tax due and owing to the United States for
purposes of Title 11 [of the United States Code]." 29 U.S.C. ss. 1368(c)(2).
8. By filing this claim, the PBGC asserts that the Debtor is liable to
the PBGC pursuant to ERISA xx.xx. 4062 and 4068, 29 U.S.C. xx.xx. 1362 and 1368,
and demands payment of that liability from the Debtor and all members of its
controlled group.
9. This debt to the PBGC will arise, the administration of the estate
and, therefore, will be entitled to priority as a tax incurred by the estate
pursuant to 11 U.S.C. xx.xx. 503(b)(1)(B) and 507(a)(1), up to the amount
described above in paragraph 7.
10. Alternatively, in the event that the claim or any part of it is
determined not to be entitled to priority under 11 U.S.C. xx.xx. 503(b)(1)(B)
and 507(a)(1), then, to the extent such claim or part thereof does not exceed
the amount described in paragraph 7, such claim or part is hereby filed and
asserted as a priority claim under 11 U.S.C. ss. 507(a)(8).
11. Any amount of Unfunded Benefit Liabilities which is determined not
to be entitled to priority is hereby filed as a general unsecured claim.
12. The PBGC estimates that the Unfunded Benefit Liabilities of the
Hourly Plan and the Salaried Plan are $10,100,000, and $17,400,000,
respectively. This estimate is based upon actuarial information prepared by the
Debtor and, where applicable, adjusted by the PBGC. It is subject to amendment
after a date of plan termination is established and upon completion of any
inquiry to be carried out by the PBGC.
13. The amount of this claim may be subject to reduction upon
determination by the PBGC of the value, if any, of the claim for unpaid minimum
funding contributions in this case. That claim is being filed in a separate
document.
14. The PBGC lacks sufficient information on which to estimate the
collective net worth of all persons described in 29 U.S.C. ss. 1362(a), and has
not received proof that the collective net worth of such persons limits the
priority of this claim. If a limiting collective net worth is asserted and
established pursuant to 29 U.S.C.
ss. 1362, the PBGC will amend this claim accordingly.
15. The PBGC reserves the right to amend, modify and supplement this
proof of claim and/or to file additional proofs of claim for additional claims.
The filing of this claim is not intended to be and shall not be construed as (1)
an election of remedy or (2) a waiver or limitation of any rights of the PBGC,
the Plans or any of its beneficiaries or participants. In addition, the PBGC
reserves the right to supplement this claim with additional documents.
XXXXXXX X. XXXXXXXXX
Assistant General Counsel
XXXXX X. XXXXX (BJ 2184)
Attorney
PENSION BENEFIT GUARANTY
CORPORATION
Office of the General Counsel
0000 X Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000-0000
(000) 000-0000, ext. 3235
Attorneys for Claimant
EXHIBIT 2
FORM B10 (Official Form 10)(4/98)
--------------------------------------------------------------------------------
United States Bankruptcy Court SOUTHERN District of NEW YORK PROOF OF CLAIM
--------------------------------------------------------------------------------
Name of Debtor Case Number
XXXXXX CORPORATION 98-10107 (CB)
----------------------------------------------------------------
Note: This form should not be sued to make a claim for an
administrative expense arising after the commencement of the
case. A "request" for payment of an administrative expense may
be filed pursuant to 11 U.S.C. Section 503.
----------------------------------------------------------------
Name of Creditor (The person or [ ] Check box if you are
other entity to whom the debtor aware that anyone else
owes money or property): has filed a proof of
claim relating to your
PENSION BENEFIT GUARANTY claim. Attach copy
CORPORATION of statement giving
particulars.
-------------------------------------
Name and address where notices
should be sent: [X] Check box if you have
never received any
Pension Benefit Guaranty Corporation notices from the
Office of the General Counsel, bankruptcy court in
Attn: Xxxxx X. Xxxxx, Esq. this case.
0000 X. Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000 [ ] Check box if the
address differs from
the address on the
envelope sent to you
by the court.
Telephone number:
000-000-0000, ext. 3235
--------------------------------------------------------------------------------
Account or other number by which Check here [ ] replaces
creditor identifies debtor: if this claim [ ] amends a previously
filed claim,
dated: _______________
--------------------------------------------------------------------------------
1. Basis for Claim
[ ] Goods sold [ ] Retiree benefits as defined in
[ ] Services performed 11 U.S.C. Section 1114(a)
[ ] Money loaned [ ] Wages, salaries, and compensation
[ ] Personal injury/wrongful (fill out below)
death
[ ] Taxes Your SS#: _____ ______ _______
[X] Other Unpaid Compensation for services
Statutory liability performed
under 29 U.S.C. from ______________ to ______________
Sections 1362, 1368 (date) (date)
(see attached
statement)
--------------------------------------------------------------------------------
2. Date debt was incurred: 3. If court judgment, date obtained:
Arises from before the petition
date through date of plan
termination
--------------------------------------------------------------------------------
4. Total Amount of Claim at Time Case Filed: $UNLIQUIDATED
------------
If all or part of your claim is secured or entitled to priority, also
complete Item 5 or 6 below.
[ ] Check this box if claim includes interest or other charges in addition to
the principal amount of the claim. Attach itemized statement of all
interest or additional charges
--------------------------------------------------------------------------------
5. Secured Claim.
[ ] Check this box if your claim is secured by collateral (including a right of
setoff).
Brief Description of Collateral:
[ ] Real Estate [ ] Motor Vehicle
[ ] Other ___________________
Value of Collateral: $_____________________
Amount of arrearage and other charges at time case filed included in secured
claim, if any: $______________________
--------------------------------------------------------------------------------
6. Unsecured Priority Claim.
[X] Check this box if you have an unsecured priority claim
Amount entitled to priority $ UNLIQUIDATED
------------
Specify the priority of the claim:
[ ] Wages, salaries, or commissions (up to $4300), * earned within 90 days
before filing of the bankruptcy petition or cessation of the debtor's
business, whichever is earlier -- 11 U.S.C. Section 507(a)(3).
[X] Contributions to an employee benefit plan -- 11 U.S.C. Section 507(a)(4).
[ ] Up to $1,950* of deposits toward purchase, lease, or rental of property
or services for personal, family, or household use -- 11 U.S.C.
Section 507(a)(6)
[ ] Alimony, maintenance, or support owed to a spouse, former spouse, or
child -- 11 U.S.C. Section 507(a)(7).
[X] Taxes or penalties owed to governmental units -- 11 U.S.C.
Section 507(a)(8).
[X] Other -- Specify applicable paragraph of 11 U.S.C. Section 507(a)
(1), 503(b)(1)
--------------
(see attached statement)
* Amounts are subject to adjustment on 4/1/98 and every 3 years thereafter
with respect to cases commenced on or after the date of adjustment.
--------------------------------------------------------------------------------
7. Credits: The amount of all payments on this THIS SPACE IS FOR
claim has been credited and deducted for COURT USE ONLY
the purpose of making this proof of claim.
8. Supporting Documents: Attach copies of
supporting documents, such as promissory
notes, purchase orders, invoices,
itemized statements of running accounts,
contracts, court judgments, mortgages,
security agreements, and evidence of
perfection of lien. DO NOT SEND
ORIGINAL DOCUMENTS. If the documents
are not available, explain. If the
documents are voluminous, attach
a summary.
9. Date-Stamped Copy: To receive an
acknowledgment of the filing of your
claim, enclose a stamped,
self-addressed envelope and copy
of this proof of claim.
-------------------------------------------------
Date Sign and print the name and title,
if any, of the creditor or other
person authorized to file this
claim (attach copy of power of
attorney, if any):
Xxxxxxx X. Xxxxxxxxx
Assistant General Counsel
--------------------------------------------------------------------------------
Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment
for up to 5 years, or both. 18 U.S.C. Sections 152 and 3571.
--------------------------------------------------------------------------------
Xxxxx X. Xxxxx (BJ-2184)
Pension Benefit Guaranty Corporation
Office of the General Counsel
0000 X Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000, ext. 3235
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE
XXXXXX CORPORATION,
Debtor.
Chapter 11
Case No. 98 B 10107(CB)
STATEMENT IN SUPPORT OF CLAIM
The Pension Benefit Guaranty Corporation ("PBGC"), on behalf of the
XXXXXX Corporation Pension Plan (hereinafter the "Plan"), hereby sets forth its
claim against XXXXXX Corporation (hereinafter the "Debtor"), stating:
1. PBGC is a wholly-owned United States Government corporation created
under Title IV of the Employee Retirement income Security Act of 1974 ("ERISA"),
29 U.S.C. xx.xx. 1301-1461 (1994 & Supp. II 1996), to administer the mandatory
pension plan termination insurance program established under Title IV of ERISA.
The PBGC guarantees the payment of certain pension benefits upon termination of
a pension plan to which Title IV applies. See 29 U.S.C. xx.xx. 1321, 1322.
2. The Plan is a tax-qualified, single employer, defined benefit
pension plan covered by Title IV of ERISA. 29 U.S.C. ss. 1321. At all relevant
times, the Debtor was the contributing sponsor of the within the meaning of 29
U.S.C. ss. 1301(a)(13).
3. The contributing sponsor and each member of its controlled group are
liable to the Plan for at least the amounts necessary to satisfy ERISA's minimum
funding standards ("Minimum Funding Contributions"). See 29 U.S.C. xx.xx. 1082,
1362(c); 26 U.S.C. ss. 412.
4. The Plan may terminate. This claim is made on behalf of the Plan for
unpaid Minimum Funding Contributions based on the contingency that the Plan will
terminate and/or the PBGC will become trustee prior to the confirmation of a
plan of reorganization in this case. See 29 U.S.C. xx.xx. 1341, 1342. If the
Plan terminates, the PBGC will amend this claim as necessary.
5. On information and belief, if the Plan terminates, the assets held
under the Plan will not be sufficient to discharge when due all obligations of
the Plan with respect to benefits guaranteed by the PBGC.
6. To date, the PBGC has not calculated the amount of Minimum Funding
Contributions owed with respect to the Plan.
7. This claim is entitled to priority as follows:
A. PRIORITY UNDER 11 U.S.C. xx.xx. 503(b)(1)(A) AND 507(a)(1)
The debt for unpaid Minimum Funding Contributions to the Plan that
accrued in the ordinary course of business during the administration of the
Debtor's Chapter 11 estate until the date of Plan termination is entitled to
priority as an expense of administration pursuant to 11 U.S.C.
ss.ss.503(b)(1)(A) and 507(a)(1).
B. PRIORITY UNDER 11 U. S. C. xx.xx. 503 (b)(1)(B) AND 507 (a)(1 )
When the aggregate unpaid Minimum Funding Contributions for plan years
beginning after 1987 exceeds $1 million, 29 U.S.C. ss. 1082(f) and 26 U.S.C. ss.
412(n) create a lien in favor of the Plan against the contributing sponsor and
each member of its controlled group. Under these sections, the amount of such
lien is "treated as taxes due and owing the United States." 29 U.S.C. ss.
1082(f)(4)(C); 26 U.S.C. ss.412(n)(4)(C). To the extent this debt arises during
the post-petition period, it is entitled to priority pursuant to 11 U.S.C.
xx.xx. 503(b)(1)(B) and 507(a)(1).
C. PRIORITY UNDER 11 U. S.C. ss. 507(a)(4)
The debt for Unpaid Minimum Funding Contributions to the Plan that are
attributable to the 180 days prior to the filing of the bankruptcy petition is
entitled to priority pursuant to 11 U.S.C. ss.507(a)(4).
D. PRIORITY UNDER 11 U.S.C. ss. 507(a)(8)
To the extent the Debtor's tax liability for unpaid Minimum Funding
Contributions arose prior to the administration of the estate, it is entitled to
priority pursuant to 11 U.S.C. ss. 507(a)(8)
8. To the extent that any portion of this claim is determined not to be
entitled to priority, that amount is asserted as a general unsecured claim.
9. The PBGC is not aware of any other claim for Minimum Funding
Contributions having been filed by any person on behalf of the Plan
10. The PBGC reserves the right to amend, modify and supplement this
proof of claim and/or to file additional proofs of claim. The filing of this
proof of claim is not intended to be and shall not be construed as (1) an
election of remedy or (2) a waiver or limitation of any rights of the PBGC, the
Plan or any of its beneficiaries or participants. In addition, PBGC reserves the
right to supplement this proof of claim with additional relevant documents.
XXXXXXX X. XXXXXXXXX
Assistant General Counsel
XXXXX X. XXXXX
Attorney
PENSION BENEFIT GUARANTY
CORPORATION ON BEHALF OF THE
XXXXXX CORPORATION
PENSION PLAN
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000, ext. 3235
Attorneys for Claimant Pension Benefit
Guaranty Corporation
EXHIBIT 3
FORM B10 (Official Form 10)(4/98)
--------------------------------------------------------------------------------
United States Bankruptcy Court SOUTHERN District of NEW YORK PROOF OF CLAIM
--------------------------------------------------------------------------------
Name of Debtor Case Number
XXXXXX CORPORATION 98-10107 (CB)
----------------------------------------------------------------
Note: This form should not be sued to make a claim for an
administrative expense arising after the commencement of the
case. A "request" for payment of an administrative expense may
be filed pursuant to 11 U.S.C. Section 503.
----------------------------------------------------------------
Name of Creditor (The person or [ ] Check box if you are
other entity to whom the debtor aware that anyone else
owes money or property): has filed a proof of
claim relating to your
PENSION BENEFIT GUARANTY claim. Attach copy
CORPORATION of statement giving
particulars.
-------------------------------------
Name and address where notices
should be sent: [X] Check box if you have
never received any
Pension Benefit Guaranty Corporation notices from the
Office of the General Counsel, bankruptcy court in
Attn: Xxxxx X. Xxxxx, Esq. this case.
0000 X. Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000 [ ] Check box if the
address differs from
the address on the
envelope sent to you
by the court.
Telephone number:
000-000-0000, ext. 3235
--------------------------------------------------------------------------------
Account or other number by which Check here [ ] replaces
creditor identifies debtor: if this claim [ ] amends a previously
filed claim,
dated: _______________
--------------------------------------------------------------------------------
1. Basis for Claim
[ ] Goods sold [ ] Retiree benefits as defined in
[ ] Services performed 11 U.S.C. Section 1114(a)
[ ] Money loaned [ ] Wages, salaries, and compensation
[ ] Personal injury/wrongful (fill out below)
death
[ ] Taxes Your SS#: _____ ______ _______
[X] Other Unpaid Compensation for services
Statutory liability performed
under 29 U.S.C. from ______________ to ______________
Sections 1362, 1368 (date) (date)
(see attached
statement)
--------------------------------------------------------------------------------
2. Date debt was incurred: 3. If court judgment, date obtained:
Arises from before the petition
date through date of plan
termination
--------------------------------------------------------------------------------
4. Total Amount of Claim at Time Case Filed: $UNLIQUIDATED
------------
If all or part of your claim is secured or entitled to priority, also
complete Item 5 or 6 below.
[ ] Check this box if claim includes interest or other charges in addition to
the principal amount of the claim. Attach itemized statement of all
interest or additional charges
--------------------------------------------------------------------------------
5. Secured Claim.
[ ] Check this box if your claim is secured by collateral (including a right of
setoff).
Brief Description of Collateral:
[ ] Real Estate [ ] Motor Vehicle
[ ] Other ___________________
Value of Collateral: $_____________________
Amount of arrearage and other charges at time case filed included in secured
claim, if any: $______________________
--------------------------------------------------------------------------------
6. Unsecured Priority Claim.
[X] Check this box if you have an unsecured priority claim
Amount entitled to priority $ UNLIQUIDATED
------------
Specify the priority of the claim:
[ ] Wages, salaries, or commissions (up to $4300), * earned within 90 days
before filing of the bankruptcy petition or cessation of the debtor's
business, whichever is earlier -- 11 U.S.C. Section 507(a)(3).
[X] Contributions to an employee benefit plan -- 11 U.S.C. Section 507(a)(4).
[ ] Up to $1,950* of deposits toward purchase, lease, or rental of property
or services for personal, family, or household use -- 11 U.S.C.
Section 507(a)(6)
[ ] Alimony, maintenance, or support owed to a spouse, former spouse, or
child -- 11 U.S.C. Section 507(a)(7).
[X] Taxes or penalties owed to governmental units -- 11 U.S.C.
Section 507(a)(8).
[X] Other -- Specify applicable paragraph of 11 U.S.C. Section 507(a)
(1), 503(b)(1)
--------------
(see attached statement)
* Amounts are subject to adjustment on 4/1/98 and every 3 years thereafter
with respect to cases commenced on or after the date of adjustment.
--------------------------------------------------------------------------------
7. Credits: The amount of all payments on this THIS SPACE IS FOR
claim has been credited and deducted for COURT USE ONLY
the purpose of making this proof of claim.
8. Supporting Documents: Attach copies of
supporting documents, such as promissory
notes, purchase orders, invoices,
itemized statements of running accounts,
contracts, court judgments, mortgages,
security agreements, and evidence of
perfection of lien. DO NOT SEND
ORIGINAL DOCUMENTS. If the documents
are not available, explain. If the
documents are voluminous, attach
a summary.
9. Date-Stamped Copy: To receive an
acknowledgment of the filing of your
claim, enclose a stamped,
self-addressed envelope and copy
of this proof of claim.
-------------------------------------------------
Date Sign and print the name and title,
if any, of the creditor or other
person authorized to file this
claim (attach copy of power of
attorney, if any):
Xxxxxxx X. Xxxxxxxxx
Assistant General Counsel
--------------------------------------------------------------------------------
Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment
for up to 5 years, or both. 18 U.S.C. Sections 152 and 3571.
--------------------------------------------------------------------------------
Xxxxx X. Xxxxx (BJ-2184)
Pension Benefit Guaranty Corporation
Office of the General Counsel
0000 X Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000, ext. 3235
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE
XXXXXX CORPORATION,
Debtor.
Chapter 11
Case No. 98 B 10107(CB)
STATEMENT IN SUPPORT OF CLAIM
The Pension Benefit Guaranty Corporation ("PBGC"), on behalf of the
XXXXXX Corporation Retirement Plan (hereinafter the "Plan"), hereby sets forth
its claim against XXXXXX Corporation (hereinafter the "Debtor"), stating:
PBGC is a wholly-owned United States Government corporation
created under Title IV of the Employee Retirement income Security Act of 1974
("ERISA"), 29 U.S.C. xx.xx. 1301-1461 (1994 & Supp. II 1996), to administer the
mandatory pension plan termination insurance program established under Title IV
of ERISA. The PBGC guarantees the payment of certain pension benefits upon
termination of a pension plan to which Title IV applies.
See 29 U.S.C. xx.xx. 1321, 1322.
2. The Plan is a tax-qualified, single employer, defined benefit
pension plan covered by Title IV of ERISA. 29 U.S.C. ss. 1321. At all relevant
times, the Debtor was the contributing sponsor of the Plan within the meaning of
29 U.S.C. ss. 1301(a)(13).
3. The contributing sponsor and each member of its controlled group are
liable to the Plan for at least the amounts necessary to satisfy ERISA's minimum
funding standards ("Minimum Funding Contributions"). See 29 U.S.C. xx.xx. 1082,
1362(c); 26 U.S.C. ss. 412.
4. The Plan may terminate. This claim is made on behalf of the Plan for
unpaid Minimum Funding Contributions based on the contingency that the Plan will
terminate and/or the PBGC will become trustee prior to the confirmation of a
plan of reorganization in this case. See 29 U. S.C. ss.ss.1341, 1342. If the
Plan terminates, the PBGC will amend this claim as necessary.
5. On information and belief, if the Plan terminates, the assets held
under the Plan will not be sufficient to discharge when due all obligations of
the Plan with respect to benefits guaranteed by the PBGC.
6. To date, the PBGC has not calculated the amount of Minimum Funding
Contributions owed with respect to the Plan.
7. This claim is entitled to priority as follows:
A. PRIORITY UNDER 11 U.S.C. xx.xx. 503(b)(1)(A) AND 507(a)(1)
The debt for unpaid Minimum Funding Contributions to the Plan that
accrued in the ordinary course of business during the administration of the
Debtor's Chapter 11 estate until the date of Plan termination is entitled to
priority as an expense of administration pursuant to 11 U.S.C.
ss.ss.503(b)(1)(A) and 507(a)(1)
B. PRIORITY UNDER 11 U.S.C. xx.xx. 503(b)(1)(B) AND 507 (a)(1)
When the aggregate unpaid Minimum Funding Contributions for plan years
beginning after 1987 exceeds $1 million, 29 U.S.C. ss. 1082(0 and 26 U.S.C. ss.
412(n) create a lien in favor of the Plan against the contributing sponsor and
each member of its controlled group. Under these sections, the amount of such
lien is "treated as taxes due and owing the United States." 29 U.S.C. ss.
1082(f)(4)(C); 26 U.S.C. ss.412(n)(4)(C). To the extent this debt arises during
the post-petition period, it is entitled to priority pursuant to 11 U.S.C.
xx.xx. 503(b)(1)(B) and 507(a)(1).
C. PRIORITY UNDER 11 U.S.C. ss. 507(a)(4)
The debt for Unpaid Minimum Funding Contributions to the Plan that are
attributable to the 180 days prior to the filing of the bankruptcy petition is
entitled to priority pursuant to 11 U.S.C. ss.507(a)(4).
D. PRIORITY UNDER 11 U.S.C. ss. 507(a)(8)
To the extent the Debtor's tax liability for unpaid Minimum Funding
Contributions arose prior to the administration of the estate, it is entitled to
priority pursuant to 11 U.S.C. ss. 507(a)(8)
8. To the extent that any portion of this claim is determined not to be
entitled to priority, that amount is asserted as a general unsecured claim.
9. The PBGC is not aware of any other claim for Minimum Funding
Contributions having been filed by any person on behalf of the Plan.
10. The PBGC reserves the right to amend, modify and supplement this
proof of claim and/or to file additional proofs of claim. The filing of this
proof of claim is not intended to be and shall not be construed as (1) an
election of remedy or (2) a waiver or limitation of any rights of the PBGC, the
Plan or any of its beneficiaries or participants. In addition, PBGC reserves the
right to supplement this proof of claim with additional relevant documents.
XXXXXXX X. XXXXXXXXX
Assistant General Counsel
XXXXX X. XXXXX
Attorney
PENSION BENEFIT GUARANTY
CORPORATION ON BEHALF OF THE
XXXXXX CORPORATION
RETIREMENT PLAN
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000, ext. 3235
Attorneys for Claimant Pension Benefit
Guaranty Corporation
EXHIBIT 4
FORM B10 (Official Form 10)(4/98)
--------------------------------------------------------------------------------
United States Bankruptcy Court SOUTHERN District of NEW YORK PROOF OF CLAIM
--------------------------------------------------------------------------------
Name of Debtor Case Number
XXXXXX CORPORATION 98-10107 (CB)
----------------------------------------------------------------
Note: This form should not be sued to make a claim for an
administrative expense arising after the commencement of the
case. A "request" for payment of an administrative expense may
be filed pursuant to 11 U.S.C. Section 503.
----------------------------------------------------------------
Name of Creditor (The person or [ ] Check box if you are
other entity to whom the debtor aware that anyone else
owes money or property): has filed a proof of
claim relating to your
PENSION BENEFIT GUARANTY claim. Attach copy
CORPORATION of statement giving
particulars.
-------------------------------------
Name and address where notices
should be sent: [X] Check box if you have
never received any
Pension Benefit Guaranty Corporation notices from the
Office of the General Counsel, bankruptcy court in
Attn: Xxxxx X. Xxxxx, Esq. this case.
0000 X. Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000 [ ] Check box if the
address differs from
the address on the
envelope sent to you
by the court.
Telephone number:
000-000-0000, ext. 3235
--------------------------------------------------------------------------------
Account or other number by which Check here [ ] replaces
creditor identifies debtor: if this claim [ ] amends a previously
filed claim,
dated: _______________
--------------------------------------------------------------------------------
1. Basis for Claim
[ ] Goods sold [ ] Retiree benefits as defined in
[ ] Services performed 11 U.S.C. Section 1114(a)
[ ] Money loaned [ ] Wages, salaries, and compensation
[ ] Personal injury/wrongful (fill out below)
death
[ ] Taxes Your SS#: _____ ______ _______
[X] Other Unpaid Compensation for services
Statutory liability performed
under 29 U.S.C. from ______________ to ______________
Sections 1362, 1368 (date) (date)
(see attached
statement)
--------------------------------------------------------------------------------
2. Date debt was incurred: 3. If court judgment, date obtained:
Arises from before the petition
date through date of plan
termination
--------------------------------------------------------------------------------
4. Total Amount of Claim at Time Case Filed: $UNLIQUIDATED
------------
If all or part of your claim is secured or entitled to priority, also
complete Item 5 or 6 below.
[X] Check this box if claim includes interest or other charges in addition to
the principal amount of the claim. Attach itemized statement of all
interest or additional charges
--------------------------------------------------------------------------------
5. Secured Claim.
[ ] Check this box if your claim is secured by collateral (including a right of
setoff).
Brief Description of Collateral:
[ ] Real Estate [ ] Motor Vehicle
[ ] Other ___________________
Value of Collateral: $_____________________
Amount of arrearage and other charges at time case filed included in secured
claim, if any: $______________________
--------------------------------------------------------------------------------
6. Unsecured Priority Claim.
[X] Check this box if you have an unsecured priority claim
Amount entitled to priority $ UNLIQUIDATED
------------
Specify the priority of the claim:
[ ] Wages, salaries, or commissions (up to $4300), * earned within 90 days
before filing of the bankruptcy petition or cessation of the debtor's
business, whichever is earlier -- 11 U.S.C. Section 507(a)(3).
[ ] Contributions to an employee benefit plan -- 11 U.S.C. Section 507(a)(4).
[ ] Up to $1,950* of deposits toward purchase, lease, or rental of property
or services for personal, family, or household use -- 11 U.S.C.
Section 507(a)(6)
[ ] Alimony, maintenance, or support owed to a spouse, former spouse, or
child -- 11 U.S.C. Section 507(a)(7).
[ ] Taxes or penalties owed to governmental units -- 11 U.S.C.
Section 507(a)(8).
[X] Other -- Specify applicable paragraph of 11 U.S.C. Section 507(a)
(1), 503(b)(1)
--------------
(see attached statement)
* Amounts are subject to adjustment on 4/1/98 and every 3 years thereafter
with respect to cases commenced on or after the date of adjustment.
--------------------------------------------------------------------------------
7. Credits: The amount of all payments on this THIS SPACE IS FOR
claim has been credited and deducted for COURT USE ONLY
the purpose of making this proof of claim.
8. Supporting Documents: Attach copies of
supporting documents, such as promissory
notes, purchase orders, invoices,
itemized statements of running accounts,
contracts, court judgments, mortgages,
security agreements, and evidence of
perfection of lien. DO NOT SEND
ORIGINAL DOCUMENTS. If the documents
are not available, explain. If the
documents are voluminous, attach
a summary.
9. Date-Stamped Copy: To receive an
acknowledgment of the filing of your
claim, enclose a stamped,
self-addressed envelope and copy
of this proof of claim.
-------------------------------------------------
Date Sign and print the name and title,
if any, of the creditor or other
person authorized to file this
claim (attach copy of power of
attorney, if any):
Xxxxxxx X. Xxxxxxxxx
Assistant General Counsel
--------------------------------------------------------------------------------
Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment
for up to 5 years, or both. 18 U.S.C. Sections 152 and 3571.
--------------------------------------------------------------------------------
Xxxxx X. Xxxxx (BJ-2184)
Pension Benefit Guaranty Corporation
Office of the General Counsel
0000 X Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000, ext. 3235
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE
XXXXXX CORPORATION,
Debtor
Chapter 11
Case No. 98 B 10107(CB)
STATEMENT IN SUPPORT OF CLAIM
The Pension Benefit Guaranty Corporation ("PBGC") hereby sets forth
its claim against XXXXXX Corporation (hereinafter the "Debtor"), stating:
1. PBGC is a wholly-owned United States Government corporation created
under Title IV of the Employee Retirement income Security Act of 1974
("ERISA.'), 29 U.S.C. xx.xx. 1301-1461 (1994 and Supp. II 1996), to administer
the mandatory pension plan termination insurance program established under Title
IV of ERISA. The PBGC guarantees the payment of certain pension benefits upon
termination of a pension plan to which Title I\' applies. See 29 U.S.C. xx.xx.
1321, 1322.
2. The XXXXXX Corporation Pension Plan (the "Hourly Plan") and the
XXXXXX Corporation Retirement Plan (the "Salaried Plan) (collectively the
"Plans"), are tax-qualified, single employer, defined benefit pension plans
covered by Title IV of ERISA. 29 U.S.C. ss. 1321.
3. The Debtor is the contributing sponsor of the Plans, within the
meaning of 29 U.S.C. ss. 1301(a)(13).
4. A contributing sponsor is a "designated payor" under 29 U.S.C. ss.
1307(e)(1)(A), and as such, is liable for premiums, interest, and penalties
imposed by ERISA for plans covered by Title IV of ERISA. See 29 U.S.C. ss.
1307(a), (b) and (e); 29 C.F.R. ss. 4007.12(a).
5. This claim is made pursuant to 29 U.S.C. ss. 1307(a), (b) and (e),
for unpaid premiums, plus interest and penalties.
6. This claim includes unpaid premiums that may become due during the
administration of the Debtor's estate. Such amounts are entitled to priority
under 11 U.S.C. xx.xx. 507(a)(1) and 503(b)(1)(A).
7. The amount of this claim is unliquidated at this time. Pursuant to
29 U.S.C. ss. 1307(a), PBGC premiums are due until a plan's assets are
distributed pursuant to a termination procedure or, if earlier, until a trustee
is appointed pursuant to 29 U.S.C. ss. 1342. Since neither event has occurred,
premiums continue to accrue and the total amount of premiums due cannot be
determined. When the amount can be finally determined, the PBGC will amend this
claim as necessary.
8. Any amount of the premiums due with respect to the Plans which is
determined not to be entitled to priority is hereby filed as a general unsecured
claim.
9. The PBGC reserves the right to amend, modify and supplement this
proof of claim and/or to file additional proofs of claim. The filing of this
proof of claim is not intended to be and shall not be construed as (1) an
election of remedy or (2) a waiver or limitation of any rights of the PBGC, the
Plans or any of its beneficiaries or participants.
XXXXXXX X. XXXXXXXXX
Assistant General Counsel
XXXXX X. XXXXX (BJ-2184)
Attorney
PENSION BENEFIT GUARANTY
CORPORATION
Office of the General Counsel
0000 X Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000-0000
(000) 000-0000, ext. 3235
Attorneys for Claimant
EXHIBIT 5
FORM B10 (Official Form 10)(4/98)
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United States Bankruptcy Court SOUTHERN District of NEW YORK PROOF OF CLAIM
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Name of Debtor Case Number
XXXXXX CORPORATION 98-10107 (CB)
----------------------------------------------------------------
Note: This form should not be sued to make a claim for an
administrative expense arising after the commencement of the
case. A "request" for payment of an administrative expense may
be filed pursuant to 11 U.S.C. Section 503.
----------------------------------------------------------------
Name of Creditor (The person or [ ] Check box if you are
other entity to whom the debtor aware that anyone else
owes money or property): has filed a proof of
claim relating to your
PENSION BENEFIT GUARANTY claim. Attach copy
CORPORATION of statement giving
particulars.
-------------------------------------
Name and address where notices
should be sent: [X] Check box if you have
never received any
Pension Benefit Guaranty Corporation notices from the
Office of the General Counsel, bankruptcy court in
Attn: Xxxxx X. Xxxxx, Esq. this case.
0000 X. Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000 [ ] Check box if the
address differs from
the address on the
envelope sent to you
by the court.
Telephone number:
000-000-0000, ext. 3235
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Account or other number by which Check here [ ] replaces
creditor identifies debtor: if this claim [ ] amends a previously
filed claim,
dated: _______________
--------------------------------------------------------------------------------
1. Basis for Claim
[ ] Goods sold [ ] Retiree benefits as defined in
[ ] Services performed 11 U.S.C. Section 1114(a)
[ ] Money loaned [ ] Wages, salaries, and compensation
[ ] Personal injury/wrongful (fill out below)
death
[ ] Taxes Your SS#: _____ ______ _______
[X] Other Unpaid Compensation for services
Statutory liability performed
under 29 U.S.C. from ______________ to ______________
Sections 1362, 1368 (date) (date)
(see attached
statement)
--------------------------------------------------------------------------------
2. Date debt was incurred: 3. If court judgment, date obtained:
Arises from before the petition
date through date of plan
termination
--------------------------------------------------------------------------------
4. Total Amount of Claim at Time Case Filed: $UNLIQUIDATED
------------
If all or part of your claim is secured or entitled to priority, also
complete Item 5 or 6 below.
[ ] Check this box if claim includes interest or other charges in addition to
the principal amount of the claim. Attach itemized statement of all
interest or additional charges
--------------------------------------------------------------------------------
5. Secured Claim.
[ ] Check this box if your claim is secured by collateral (including a right of
setoff).
Brief Description of Collateral:
[ ] Real Estate [ ] Motor Vehicle
[ ] Other ___________________
Value of Collateral: $_____________________
Amount of arrearage and other charges at time case filed included in secured
claim, if any: $______________________
--------------------------------------------------------------------------------
6. Unsecured Priority Claim.
[ ] Check this box if you have an unsecured priority claim
Amount entitled to priority $ UNLIQUIDATED
------------
Specify the priority of the claim:
[ ] Wages, salaries, or commissions (up to $4300), * earned within 90 days
before filing of the bankruptcy petition or cessation of the debtor's
business, whichever is earlier -- 11 U.S.C. Section 507(a)(3).
[ ] Contributions to an employee benefit plan -- 11 U.S.C. Section 507(a)(4).
[ ] Up to $1,950* of deposits toward purchase, lease, or rental of property
or services for personal, family, or household use -- 11 U.S.C.
Section 507(a)(6)
[ ] Alimony, maintenance, or support owed to a spouse, former spouse, or
child -- 11 U.S.C. Section 507(a)(7).
[ ] Taxes or penalties owed to governmental units -- 11 U.S.C.
Section 507(a)(8).
[ ] Other -- Specify applicable paragraph of 11 U.S.C. Section 507(a)
(1), 503(b)(1)
--------------
(see attached statement)
* Amounts are subject to adjustment on 4/1/98 and every 3 years thereafter
with respect to cases commenced on or after the date of adjustment.
--------------------------------------------------------------------------------
7. Credits: The amount of all payments on this THIS SPACE IS FOR
claim has been credited and deducted for COURT USE ONLY
the purpose of making this proof of claim.
8. Supporting Documents: Attach copies of
supporting documents, such as promissory
notes, purchase orders, invoices,
itemized statements of running accounts,
contracts, court judgments, mortgages,
security agreements, and evidence of
perfection of lien. DO NOT SEND
ORIGINAL DOCUMENTS. If the documents
are not available, explain. If the
documents are voluminous, attach
a summary.
9. Date-Stamped Copy: To receive an
acknowledgment of the filing of your
claim, enclose a stamped,
self-addressed envelope and copy
of this proof of claim.
-------------------------------------------------
Date Sign and print the name and title,
if any, of the creditor or other
person authorized to file this
claim (attach copy of power of
attorney, if any):
Xxxxxxx X. Xxxxxxxxx
Assistant General Counsel
--------------------------------------------------------------------------------
Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment
for up to 5 years, or both. 18 U.S.C. Sections 152 and 3571.
--------------------------------------------------------------------------------
Xxxxx X. Xxxxx (BJ2184)
Pension Benefit Guaranty Corporation
Of Office the General Counsel
0000 X Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 200054026
(202) 326-4020 ext. 3235
UNTIED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE
XXXXXX CORPORATION,
Debtor.
Chapter 11
Case No. 98 B 10107(CB)
STATEMENT IN SUPPORT OF CLAIM
The Pension Benefit Guaranty Corporation ("PBGC") hereby sets forth its
claim against Xxxxxx Corporation (hereinafter the "Debtor") stating:
1. PBGC is a wholly-owned United States Government corporation created
under Title IV of the Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. ss. ss. 1301 -1461 (1994 and Supp. II 1996), to administer the
mandatory pension plan termination insurance program established under Title IV
of ER ISA The PBGC guarantees the payment of certain pension benefits upon
termination of a pension plan to which Title IV applies.
See 29 U.S.C. ss.ss.1321, 1322.
2. The XXXXXX Corporation Pension Plan (the "Hourly Plan") and the
Xxxxxx Corporation Retirement Plan (the "Salaried Plan") (collectively the
"Plans") are tax-qualified single employer, defined benefit pension plans
covered by Title IV of ERISA. 29 U.S.C. ss. 1321.
3. The Debtor is the contributing sponsor of the Plans, within the
meaning of 29 U.S.C. ss. 1301(a)(13).
4. If an employer ceases operations at a facility in any location and,
as a result more than 20 percent of the total number of active participants in a
pension plan are separated from employment, 29 U.S.C. 5 1362(e) provides that
the employer shall he treated as if it were "a substantial employer under a plan
to which more than ores employer makes contributions and the provisions of 29
U.S.C. xx.xx. 1363, 1364, and 1365 shall apply."
5. If an event which is described in 29 U. S.C. ss. 1362(o) occurs with
respect to a pension plan, 29 U.S.C. 5 1363 provides, inter alia, for the
imposition of liability to the PBGC on the employer sponsoring the plan That
liability is equal to an allocable share of the total underfunding of the
pension plan and may be returned to the employer if the pension plan does not
terminate during the next five years.
6. By letter dated March 20, 1998, the Debtor reported to the PBGC that
an event described in 29 U.S.C. 5 1362(e) occurred in 1996 when it closed its
Thomson Company division.
7. On information and belief one or more events described in 29 U.S.C.
5 1362(o) may occur as a result of actions contemplated in the Debtor's proposed
First Amended Plan of Reorganization.
8. As a result, the Debtor may be liable to the PBGC under 29
U.S.C. ss. 1363.
9. The PBGC is unable to determine the amount of this claim at this
time.
10. The PBGC reserves the right to amend, modify and supplement this
proof of claim and/or to file additional proofs of claim for additional claims.
The filing of this claim is not intended to be sad shall not be construed as (1)
en election of remedy or (2) a waiver or limitation of any rights of the PBGC,
the Plans or any of its beneficiaries or participants in addition, the PBGC
reserves the right to supplement this claim with additional documents. This
claim may be subject to a right of set off by PBGC as an agency of the United
States Government and the United States' right to withhold subject to offset
amounts due from another Federal entity.
S XXXXXXX X. XXXXXXXXX
Assistant General Counsel
XXXXX X. XXXXX (BJ 2184)
Attorney
PENSION BENEFIT GUARANTY
CORPORATION
Office of the General Counsel
0000 X Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000-0000
(000) 000-0000, ext. 3235
Attorneys for Claimant
