MARCO INSTITUCIONAL
AUTOMEDICACIÓN DE ANALGÉSICOS: Puede producir:
1. Plan Confirmation
The Debtors can make no assurances that they will receive the requisite
acceptances to confirm the Plan. Even if the Debtors receive the requisite acceptances, there is no assurance that the Bankruptcy Court will confirm the Plan.
Even if the Bankruptcy Court determines that this Disclosure Statement and the balloting procedures and results are appropriate, the Bankruptcy Court may still decline to confirm the Plan if it finds that any of the statutory requirements for confirmation have not been met, including that the Plan does not discriminate unfairly and is fair and equitable with respect to non-accepting Classes. Moreover, there can be no assurance that modifications to the Plan will not be required for confirmation or that such modifications will not necessitate the re- solicitation of votes. If the Plan is not confirmed, it is unclear what distributions Holders of Claims or Equity Interests would ultimately receive with respect to their Claims or Equity Interests in a subsequent plan of reorganization.
2. Objections to Classifications of Claims
Section 1122 of the Bankruptcy Code provides that a plan of reorganization may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests in such class. The Debtors believe the Plan classifies all Claims and Equity Interests in accordance with section 1122 of the Bankruptcy Code, but a Holder of a Claim or Equity Interest may challenge the classification of Claims and Equity Interests, and it is possible that the Bankruptcy Court may find a different classification to be required for the Plan to be confirmed. In such event, the Debtors intend, to the extent permitted by the Bankruptcy Court and the Plan, to make such reasonable modifications of classifications under the Plan to permit confirmation and to use the Plan acceptances received in this solicitation for the purpose of obtaining the approval of the reconstituted Class or Classes of which the accepting Holder is ultimately deemed to be a member. Any such reclassification could
adversely affect the Class in which such holder was initially a member, or any other Class under the Plan, by changing the composition of such Class and the vote required of that Class for approval of the Plan.
3. The Plan May Not Become Effective.
Although the Debtors believe that the Effective Date of the Plan will occur soon after the Confirmation Date, there can be no assurance as to the occurrence of the Effective Date. If the Effective Date does not occur by September 30, 2013 or such later date as the Debtors, in consultation with the Emergence Review Parties, agree, then: (a) the Plan shall be null and void in all respects, (b) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain any Claim or Equity Interest or Class of Claims or Equity
Interests), assumption or rejection of executory contracts or leases effected by the Plan or any document or agreement executed pursuant thereto, shall be deemed null and void and (c) nothing contained in the Plan shall: (i) constitute a waiver or release of any Claim by or against, or any Equity Interest in, such Debtors or any other Person (as defined in section 101(41) of the Bankruptcy Code); (ii) prejudice in any manner the rights of such Debtors or any other Person; or (iii) constitute an admission of any kind by the Debtors or any other Person.
4. There Can Be No Assurance that the Debtors Will Be Able to Meet the Requirements under the DIP ABL Credit Agreement, the DIP Term Loan Credit Agreement and the Emergence Credit Facilities.
A breach of any of the covenants (including financial covenants) or other terms contained in the DIP ABL Credit Agreement, the DIP Term Loan Credit Agreement, the Emergence Credit Facilities or, as applicable, of the related orders, could result in an event of default under the DIP ABL Credit Agreement, the DIP Term Loan Credit Agreement or the Emergence Credit Facilities, subject, in certain cases, to applicable grace and cure periods. If any event of default occurs and Kodak or Reorganized Kodak is not able either to cure such event of default or obtain the requisite waiver under such facility, then, automatically or upon acceleration by the required lenders under such facility, as applicable, all of the outstanding obligations under such facility, together with accrued and unpaid interest and fees, will become immediately due and payable, all outstanding commitments will terminate, and the agent may take certain other enforcement actions, including foreclosing on the pledged assets. Any event of
default, regardless of whether enforcement action is taken, would materially and adversely affect Kodak’s financial condition and its ability to satisfy its obligations as they come due.
5. There Can Be No Assurance That Reorganized Kodak Will Be Able to Meet the Requirements to Convert Certain Loans into an Exit Facility.
The DIP Term Loan Credit Agreement provides for the conversion of up to $653.7 million of the loans thereunder into term loans under the Emergence Rollover Credit Agreement, subject to certain conditions. The following conditions must be satisfied or waived to effectuate the conversion: (i) as of the Effective Date, EKC will have met the minimum requirements set forth in the Emergence Rollover Credit Agreement with respect to the Debtors’ U.S. liquidity, EKC’s Conversion Secured Leverage Ratio and EKC’s Conversion Adjusted EBITDA; (ii) the Bankruptcy Court will have entered an order confirming the Plan and
authorizing the credit facilities under the Emergence Rollover Credit Agreement and such order is in full force and effect on the date of the conversion; (iii) the Effective Date must occur no later than September 30, 2013; (iii) no default or event of default shall have occurred and be continuing under the DIP Term Loan Credit Agreement or would result from the conversion; (iv) the sale of certain specified assets that are not part of the Commercial Imaging business must have occurred for a minimum aggregate gross cash purchase price of $600 million; (v) $200 million of the New Money Loans must have been repaid in full in cash; (vi) there shall have been an additional repayment of loans in an amount equal to 75% of U.S. liquidity above $200 million on the Effective Date; (vii) no Material Adverse Effect (as defined in the DIP Term Loan Credit Agreement) will have occurred since the date of approval of the Disclosure Statement by the Bankruptcy Court; (viii) the holders of New Money Loans will have received a fee of 2% of the New Money Loans being converted into loans under the Emergence Rollover Credit Agreement, fee to be paid in kind; (ix) all liability in respect of the KPP will have been resolved on terms reasonably satisfactory to the Required Lead Lenders (as defined in the DIP Term Loan Credit Agreement) and (x) entry of the Confirmation Order.
On April 26, 2013, EKC, the KPP, Kodak Limited and certain other Kodak entities signed a settlement agreement at the same time EKC, the KPP and certain other Kodak entities signed a stock and asset purchase agreement. Pursuant to the stock and asset purchase agreement, EKC agreed to sell to KPP (or its designee) the Personalized Imaging and Document Imaging businesses for $650 million in cash and notes. As a result, EKC may be required to seek a waiver to condition specified in subclause (iv) above.
If the conditions to conversion are not satisfied or waived (including potentially in connection with the transactions with the KPP), EKC will be required to pay in cash all of the loans under the DIP Term Loan Credit Agreement at emergence. In such case, there is no assurance that EKC will have sufficient cash on hand to repay the loans or be able to obtain alternative financing, on favorable terms or at all, to repay the loans. Even if EKC was able to obtain an alternative financing to emerge, such financing may have terms not as favorable as those contained in the Emergence Rollover Credit Agreement and could further restrict EKC’s operations post-emergence. In any event, if EKC is unable to pay the loans in full, it will be unable to consummate the Plan.
6. Undue Delay in Confirmation May Disrupt the Debtors’ Operations.
The continuation of these Chapter 11 Cases, particularly if the Plan is not approved or confirmed in the time frame currently contemplated, could adversely affect the Debtors’ operations and the Debtors’ relationships with their customers, vendors, employees and other constituents. If confirmation and consummation of the Plan do not occur expeditiously, these Chapter 11 Cases could result in, among other things, increased costs for professional fees and similar expenses. In addition, prolonged continuation of these Chapter 11 Cases may hinder the Debtors’ efforts to attract and retain management and other key personnel and would require senior management to spend significant time and effort attending to the Debtors’ financial reorganization rather than the operation of the Debtors’ businesses.
7. Plan Releases May Not Be Approved.
There can be no assurance that the Plan releases, as provided in Article 12 of the Plan, will be granted. Failure of the Bankruptcy Court to grant such relief may result in a plan of reorganization that differs from the Plan.
8. Failure to Satisfy the Terms And Conditions in the KPP Global Settlement May Prevent Kodak’s Successful Reorganization.
On April 26, 2013, EKC, the KPP, Kodak Limited and certain other Kodak entities entered into the KPP Global Settlement that resolves current and future liabilities of the Kodak group with respect to the KPP. The KPP Global Settlement is subject to terms and conditions described in more detail in Section 3.D.3.b above. If the KPP Global Settlement has been terminated prior to the Plan becoming effective, the KPP Trustee will, and the Pension Protection Fund and the U.K. Pensions Regulator may, have claims against Kodak Limited and potentially other Kodak companies in addition to the claims filed by the KPP against the Debtors. Prosecution of these claims could lead to the insolvent liquidation of Kodak Limited, its subsidiary Kodak International Finance Limited and other non-U.S. subsidiaries of EKC. The insolvent liquidation of non-U.S. subsidiaries could result in the loss of control of those
subsidiaries by EKC, may disrupt global cash management, and may delay or prevent the successful restructuring of Kodak as a going concern. In addition, in the event a non-Debtor subsidiary of EKC becomes insolvent or enter insolvency proceedings, any outstanding amount under the DIP ABL Credit Agreement or the DIP Term Loan Credit Agreement, principal and interest, could become immediately due and payable. These events could render the Debtors unable to satisfy the conditions to effectiveness of the Plan.