Exhibit 2.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY
- - - - - - - - - - - - - - - - - - x
- - - - - - - - - - - - - - - - - - :
- - - : Chapter 11
:
In re: : Case No.: 94-26723 (RG)
:
O'BRIEN ENVIRONMENTAL ENERGY, INC. :
x
Debtor.
- - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - -
COMPOSITE FOURTH AMENDED AND RESTATED
PLAN OF REORGANIZATION FOR
O'BRIEN ENVIRONMENTAL ENERGY, INC.
PROPOSED BY O'BRIEN ENVIRONMENTAL ENERGY, INC.,
THE OFFICIAL COMMITTEE OF
EQUITY SECURITY HOLDERS,
WEXFORD MANAGEMENT CORP. AND NRG ENERGY, INC.
TABLE OF CONTENTS
Page
I: Definitions 1
II: Unclassified Claims 17
III:Classification of Claims and Interests 18
3.1 Class 1--BLT Leasing Corp. 18
3.2 Class 2--CoreStates New Jersey National Bank 18
3.3 Class 3--CoreStates Bank 18
3.4 Class 4--Financing for Science International, Inc. 18
3.5 Class 5--First Fidelity Bank, N.A. 18
3.6 Class 6--General Electric Capital Corporation 18
3.7 Class 7--Heller Financial, Inc. 18
3.8 Class 8--MDFC Equipment Leasing Corp. 19
3.9 Class 9--Meridian Bank 19
3.10 Class 10--PECO Energy Company 19
3.11 Class 11--The Bank of New York (Equipment) 19
3.12 Class 12--The Bank of New York (Documents) 19
3.13 Class 13--Natwest 19
3.14 Class 14--Other Secured Claims 19
3.15 Class 15A--Senior Debt 19
3.16 Class 15B--Non-Subordinated Unsecured Claims 19
3.17 Class 15C--Old Subordinated Noteholder Claims 20
3.18 Class 16--Old Common Stock 20
3.19 Class 17--Old Subordinated Noteholder Securities
Claims 20
3.20 Class 18--Old Stockholder Securities Claims 20
i
3.21 Class 19--Old Options 20
IV: Treatment of Classes Not Impaired by the Plan 20
4.1 Class 1 (BLT Leasing Corp.) 20
4.2 Class 6 (General Electric Capital) 20
4.3 Class 9 (Subclass of Meridian Bank--Collateral
Used in Biogas Projects Formerly Owned by O'Brien 20
4.4 Class 10 (PECO Energy Company) 20
4.5 Class 13 (Natwest) 20
V: Treatment of Classed Impaired by the Plan 20
5.1 Class 2 (CoreStates New Jersey National Bank) 20
5.2 Class 3 (CoreStates Bank) 21
5.3 Class 4 (Financing for Science International,
Inc.) 21
5.4 Class 5 (First Fidelity Bank) 21
5.5 Class 7 (Heller Financial, Inc.) 21
5.6 Class 8 (MDFC Equipment Leasing Corp.) 21
5.7 Class 9 (Meridian Bank) 21
5.8 Class 11 (Bank of New York--Equipment) 22
5.9 Class 12 (The Bank of New York) 22
5.10 Class 14 (Other Secured Claims) 22
5.11 Class 15A (Senior Debt) 22
5.12 Class 15B (Non-Subordinated Unsecured Claims) 22
5.13 Class 15C (Old Subordinated Noteholder Claims) 23
5.14 Class 16 (Old Common Stock) 23
5.15 Class 17 (Old Subordinated Noteholder Securities
Claims) 23
5.16 Class 18 (Old Stockholder Securities Claims) 23
5.17 Class 19 (Old Options) 24
ii
VI:Means for Execution of Plan 24
6.1 Consummation of Acquisition and Plan 24
6.2 General Corporate Matters: Charter Amendment 25
6.3 Reconstituted Board of Directors of O'Brien 25
6.4 Corporate Action 25
6.5 Other Transaction Documents 25
6.6 Distributions 25
6.7 Distribution Dates 28
6.8 Vesting of Property 28
6.9 Consummation 28
6.10 NRG Supplemental Loan 28
6.11 Post-Petition Interest Fund 29
6.12 Deferral of DIP Loan and Wexford Administrative
Claim 29
VII: Cramdown 30
VIII:Executory Contracts 31
8.1 Rejection of Executory Contracts 31
8.2 Assumption of Executory Contracts 31
IX: Rights and Obligations of Reorganized O'Brien as Plan
Administrator 31
9.1 Appointment of Plan Administrator 31
9.2 Exculpation 31
9.3 Powers of Reorganized O'Brien 31
9.4 Duties of Reorganized O'Brien 31
X: Procedures for Resolving and Treating Disputed Claims 32
10.1 Objection Deadline 32
10.2 Responsibility For Objection to Disputed Claims 32
iii
10.3 No Distributions Pending Allowance 33
10.4 Distributions After Allowance 33
10.5 Treatment of Contingent Claims 33
10.6 Estimation of Claims 33
10.7 Disputed Claims Reserve 34
10.8 Administrative and Priority Claims Reserve 35
10.9 Payment of Taxes in Respect of the Distribution
Reserves 36
XI: Conditions to Confirmation and Effective Date 37
11.1 Conditions to Confirmation 37
11.2 Conditions to Effective Date 37
11.3 Waiver of Conditions 37
XII: Effects of Confirmation and Effectiveness of Plan 37
12.1 Discharge of Debtor 37
12.2 Discharge of Liens 38
12.3 Injunction 38
12.4 Exculpations and Limitations of Liability 38
XIII:Retention of Jurisdiction 39
13.1 Retention of Jurisdiction 39
13.2 Failure of Court to Exercise Jurisdiction 40
XIV:Miscellaneous Provisions 40
14.1 Compliance With Tax Requirements 40
14.2 Post-Confirmation Date Fees and Expenses of
Professional Persons 40
14.3 Retention of Avoidance Actions 40
14.4 Binding Effect 40
14.5 Governing Law 41
iv
14.6 Amendments and Modifications 41
14.7 Revocation 41
14.8 No Modification or Subordination Rights 41
14.9 Severability 41
14.10 De Minimis Distributions 42
14.11 Interpretation and Rules of Construction 42
14.12 Other Terms 42
14.13 Headings 42
14.14 Incorporation of Exhibits 42
v
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY
- - - - - - - - - - - - - - - - - - x
- - - - - - - - - - - - - - - - - - :
- - - : Chapter 11
:
In re: : Case No.: 94-26723 (RG)
:
O'BRIEN ENVIRONMENTAL ENERGY, INC. :
x
Debtor.
- - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - -
COMPOSITE FOURTH AMENDED AND RESTATED
PLAN OF REORGANIZATION FOR
O'BRIEN ENVIRONMENTAL ENERGY, INC.
PROPOSED BY O'BRIEN ENVIRONMENTAL ENERGY, INC.,
THE OFFICIAL COMMITTEE OF
EQUITY SECURITY HOLDERS,
WEXFORD MANAGEMENT CORP. AND NRG ENERGY, INC.
O'Brien Environmental Energy, Inc. ("O'Brien"), the Official
Committee of Equity Security Holders of O'Brien Environmental
Energy, Inc. (the "Equity Committee"), Wexford Management Corp.,
a Delaware corporation ("Wexford"), and NRG Energy, Inc., a
Delaware corporation ("NRG"), hereby propose the following plan
of reorganization for O'Brien pursuant to Chapter 11 of the
Bankruptcy Code (the "Plan"):
ARTICLE I: Definitions
Unless the context otherwise requires, the following
capitalized terms shall have the following meanings when used
herein. Any capitalized term used herein that is not defined
below and is defined in the Acquisition Agreement shall have the
meaning assigned to such term in the Acquisition Agreement. Any
term used herein that is not defined below in this Article I and
is used in the Bankruptcy Code or the Bankruptcy Rules shall have
the meaning assigned to such term in the Bankruptcy Code or
Bankruptcy Rules, unless the context clearly requires otherwise.
1.1. "Acquired Subsidiaries" means (i) O'Brien Biogas
Inc. I (SKB); (ii) O'Brien Biogas Inc. VI; (iii) O'Brien Biogas
(Mazzaro) Inc.; (iv) O'Brien Biogas (Corona) Inc.; (v) O'Brien
Biogas Inc. IV; (vi) O'Brien Biogas (Hackensack) Inc.; (vii)
O'Brien Cogen Inc. II (Artesia); (viii) O'Brien Standby Power
Energy, Inc.; (ix) O'Brien Biogas Inc. III (Atochem); and (x)
O'Brien Biogas Inc. VII.
1.2. "Acquisition Agreement" means the Amended and
Restated Stock Purchase and Reorganization Agreement to be
executed by NRG and O'Brien, substantially in the form filed with
the Bankruptcy Court on February 2, 1996.
1.3. "Additional Cash Amount" means the sum of (A) the
aggregate amount of any payments that would have been made to any
Non-Accepting Secured Creditors had such Creditors received the
Cash Payoff Treatment rather than the Collateral Putback
Treatment, and (B) the amount that the increase to the Cash
Equity Contribution provided for in Section 2.5 of the
Acquisition Agreement is determined to be greater than $945,000.
1.4. "Administrative and Cure Claims Cash Payment"
means the aggregate amount determined by the Bankruptcy Court
prior to the Effective Date as being necessary to fund (a)
Administrative Claims and Priority Claims that are Allowed and
are due and payable on the Effective Date (excluding the DIP Loan
Outstanding Amount and the Wexford Administrative Claim), (b) the
Cure Payments and (c) the Administrative and Priority Claims
Reserve. The Administrative and Cure Claims Cash Payment shall
be funded from the Reserved Administrative and Cure Claims Cash
Amount, the Additional Cash Amount, Excess Cash (to the extent
available as provided in Section 6.12(c)) and, to the extent
required by Section 6.10 below and subject to Section 10.8(b),
the NRG Mandatory Supplemental Loan.
1.5. "Administrative and Priority Claims Reserve" means
a segregated Cash fund in an amount that is determined by the
Court prior to the Effective Date to be an appropriate reserve
for the payment of the estimated allowable amount of all
Unresolved Administrative and Priority Claims and which shall
serve as the sole source of payment of any such claims that are
Allowed by Final Order after the Effective Date or that are
Allowed but by their respective terms not yet due and payable on
the Effective Date.
1.6. "Administrative Claim" means (i) a Claim entitled
to priority under Bankruptcy Code section 507(a)(1) (including
any Claim of NRG in respect of the DIP Loan), (ii) a Claim in
respect of any amounts required to be paid upon assumption of an
executory contract or unexpired lease under Bankruptcy Code
section 365(b)(1)(A) and (B), and (iii) any fees or charges
assessed against the Debtor under chapter 123 of title 28, United
States Code (28 U.S.C. Section 1911, et seq.).
1.7. "Administrative Claims Shortfall" has the meaning
set forth in Section 10.8 (b).
1.8. "Administrative Shortfall Loan" has the meaning
set forth in Section 10.8(b).
1.9. "Affiliate" means, with respect to any Entity, any
other Person controlling, controlled by, or under common control
with such Entity. For purposes of this definition, 'control'
shall mean the power to direct, or cause the direction of, the
management or policies of any Entity, whether through ownership
of securities, by contract or otherwise.
1.10."Aggregate Non-Reinstated Secured Claim
Supplemental Payment" means the aggregate amount of the Non-
Reinstated Secured Claim Supplemental Payments that are to be
made to the holders of Allowed Non-Reinstated Secured Claims on
the Effective Date.
1.11."Allowed", "Allowed Claim" or "Allowed Interest"
means, with reference to any Claim or Interest, (a) a Claim
against or Interest in the Debtor, proof of which was filed
within the applicable period of limitation fixed by the
Bankruptcy Court, and which is not a Disputed Claim or Disputed
Interest, (b) any Claim against or Interest in the Debtor, proof
of which was not filed within the applicable period of limitation
fixed by the Court and which has been listed by the Debtor in its
Schedules as liquidated in amount and not disputed or contingent,
(c) any Interest listed on the records of the Debtors transfer
agent as of the Distribution Record Date, or (d) any Claim
allowed by Final Order. An Allowed
2
Claim or Allowed Interest does not include any Claim or Interest
or portion thereof which is a Disallowed Claim or Disallowed
Interest or which has been subsequently withdrawn, disallowed,
released or waived by the holder thereof or pursuant to a Final
Order.
1.12."Allowed General Unsecured Claim" means a General
Unsecured Claim that is an Allowed Claim.
1.13."Assumed Contracts" has the meaning set forth in
Section 8.2.
1.14."Bankruptcy Code" means title 11 of the United
States Code, as amended and in effect on the Petition Date.
1.15."Bankruptcy Rules" means the Federal Rules of
Bankruptcy Procedure, as amended.
1.16."Bidding Procedures Order" means the Order (1)
Establishing and Approving Bidding Procedures, (2) Setting
Sale/Confirmation Hearing (A) to Consider Higher and Better
Offers, If Any, (B) to Approve (i) Sale of Assets, (ii)
Assumption and Assignment, as well as Rejection, of Certain
Executory Contracts, and (iii) Establishment of Cure Amounts, If
Any, and Adequate Assurance Terms and (C) for Plan Confirmation
and (3) Setting Dates for, inter alia, Filing of Competing Bids
and Plans and Objections entered by the Court on August 30, 1995.
1.17."Biogas Asset" means equipment owned by O'Brien
that is used in connection with a biogas project operated by
O'Brien or one of the Acquired Subsidiaries.
1.18."Biogas Claim Reinstatement Treatment" means, as
to a Secured Claim that is secured by a Lien on Biogas Assets,
the following treatment: (A) such Secured Claim shall not be
bifurcated into an Allowed Secured Claim and an Allowed Unsecured
Claim based on a determination of a Deficiency Amount in respect
of such Claim; (B) the Collateral securing such Claim shall be
transferred to the Acquired Subsidiary that operates or,
following the Effective Date, will operate the biogas project in
which such Collateral is used and such Acquired Subsidiary shall
assume all of O'Brien's obligations and liabilities in respect of
such Claim; (C) if applicable, the maturity of such Claim shall
be reinstated; (D) any defaults with respect to such Claim other
than the kind specified in Bankruptcy Code section 365(b)(2)
shall be cured by O'Brien; (E) the holder of such Claim shall be
compensated by O'Brien for any damages incurred by such holder as
a result of any reasonable reliance by such holder on any
contractual provision or applicable law that entitles such holder
to demand or receive accelerated payment of such Claim after any
default with respect to such Claim; and (F) the legal, equitable
and contractual rights to which such Claim entitles such holder
shall otherwise be left unaltered.
1.19."BONY Deferred Cash Payoff Treatment" means the
following treatment accorded to The Bank of New York on the
Effective Date with respect to its Class 12 Secured Claim: (a)
the Class 12 Cure Payment and (b) The Bank of New York shall
retain the Lien securing its Class 12 Secured Claim and shall
receive on account of such Claim deferred cash payments from
Reorganized O'Brien having a value, as of the Effective Date,
equal to the Allowed Class 12 Secured Claim (excluding the Class
12 Cure Payment), which deferred cash payments shall be paid
pursuant to a payment schedule and interest rate to be on terms
acceptable to the BONY and set forth in a notice by NRG filed
with the Court and served on The Bank of New York prior to
commencement of the Confirmation Hearing.
3
1.20."BPU Approval" has the meaning given to it in
Article I of the Acquisition Agreement.
1.21."Business Day" means any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
State of New York or is a day on which banking institutions
located in such state are authorized or required by Law or other
government action to close.
1.22."Cash" means legal tender of the United States of
America.
1.23."Cash Payment Fund" means a Cash fund available to
holders of Allowed General Unsecured Claims other than Wexford-
Related Unsecured Claims that will be created on the Effective
Date and into which there shall be deposited the General
Unsecured Claims Cash Payment; provided that any amount deposited
or held in the Cash Payment Fund in excess of the Required
Unsecured Claims Payment shall be withdrawn from the Cash Payment
Fund and deposited in the Post-Petition Interest Fund.
1.24."Cash Payoff Treatment" means, as to any Allowed
Secured Claim treated under the Plan, the following treatment: a
cash payment on the Effective Date in the amount specified in the
applicable section of Article V which, together with the
applicable Non-Reinstated Secured Claim Supplemental Payment,
shall be in full compromise and satisfaction of such Claim,
provided that such treatment shall not be applicable to any such
Claim, the holder of which (i) objects to any provision of the
Plan or votes such Allowed Secured Claim or the General Unsecured
Claim in respect of the Deficiency Amount of such Claim against
the Plan and (ii) receives a Treatment Election Notice providing
for Collateral Putback Treatment.
1.25."Cash Purchase Price" has the meaning given to it
in Section 2.2(a) of the Acquisition Agreement.
1.26."Chapter 11 Case" means the case under Chapter 11
of the Bankruptcy Code with respect to the Debtor pending in the
Court.
1.27."Claim" means a claim, as defined in Bankruptcy
Code section 101(5), against the Debtor that arises before the
Effective Date.
1.28."Class 12 Cure Payment" means a cash payment in
the amount of $192,000 on account of the arrearage owing by
O'Brien on the Effective Date to The Bank of New York in respect
of the Allowed Class 12 Claim of The Bank of New York.
1.29."Class 15 Claim" means any Class 15A Claim, Class
15B Claim or Class 15C Claim.
1.30."Class 15A Cash Payment Fund" shall mean that
portion of the Cash Payment Fund equal to a fraction, the
numerator of which is the aggregate amount of Allowed General
Unsecured Claims in respect of Senior Debt and the denominator of
which is the aggregate amount of all Allowed General Unsecured
Claims other than the Wexford-Related Unsecured Claims.
1.31."Class 15B Cash Payment Fund" shall mean that
portion of the Cash Payment Fund equal to a fraction, the
numerator of which is the aggregate amount of Allowed General
Unsecured Claims other than those in respect of the Wexford-
Related Class 15B
4
Claims, Senior Debt or Old Subordinated Noteholder Claims and the
denominator of which is the aggregate amount of all Allowed
General Unsecured Claims other than the Wexford-Related Unsecured
Claims.
1.32."Class 15B Distribution Amount" shall have the
meaning given to it in Section 5.12 of the Plan.
1.33."Class 15C Cash Payment Fund" shall mean that
portion of the Cash Payment Fund equal to a fraction, the
numerator of which is the aggregate amount of Allowed Old
Subordinated Noteholder Claims other than the Wexford-Related
Class 15C Claims and the denominator of which is the aggregate
amount of all Allowed General Unsecured Claims other than the
Wexford-Related Unsecured Claims.
1.34."Class 15C Distribution Amount" shall have the
meaning given to it in Section 5.13 of the Plan.
1.35."Class 15 Supplemental Payment" means a cash
payment equal to the amount of interest that accrues, at 5% per
annum, for the period from February 1, 1996 until the Effective
Date, on $69,467,000.
1.36."Class 15A Supplemental Payment" shall mean that
portion of the Class 15 Supplemental Payment equal to a fraction,
the numerator of which is the aggregate amount of Allowed General
Unsecured Claims in respect of Senior Debt and the denominator of
which is the aggregate amount of all Allowed General Unsecured
Claims other than the Wexford-Related Unsecured Claims.
1.37."Class 15B Supplemental Payment" shall mean that
portion of the Class 15 Supplemental Payment equal to a fraction,
the numerator of which is the aggregate amount of Allowed General
Unsecured Claims other than those in respect of the Wexford-
Related Class 15B Claims, Senior Debt or Old Subordinated
Noteholder Claims and the denominator of which is the aggregate
amount of all Allowed General Unsecured Claims other than the
Wexford-Related Unsecured Claims.
1.38."Class 15C Supplemental Payment" shall mean that
portion of the Class 15 Supplemental Payment equal to a fraction,
the numerator of which is the aggregate amount of Allowed Old
Subordinated Noteholder Claims other than the Wexford-Related
Class 15C Claims and the denominator of which is the aggregate
amount of all Allowed General Unsecured Claims other than the
Wexford-Related Unsecured Claims.
1.39."Co-Investment Agreement" means the Co-Investment
Agreement between Reorganized O'Brien and NRG pursuant to which
NRG shall grant Reorganized O'Brien a right of first refusal with
respect to the Energy Development Projects (as defined in the
Acquisition Agreement), substantially in the form attached as an
Exhibit to the Acquisition Agreement.
1.40."Collateral" means any property of the Debtor
subject to a valid and enforceable Lien to secure the payment of
a Claim.
1.41."Collateral Putback Treatment" means, as to any
Allowed Secured Claim treated under the Plan, the following
treatment: the holder of such Allowed Claim will receive the
Collateral securing such Claim on the Effective Date. If the
Collateral Putback
5
Treatment is applicable to a particular Secured Claim, the
Allowed amount of such Claim shall be determined by the Court
prior to the Effective Date.
1.42."Committees" means the Creditors' Committee and
the Equity Committee.
1.43."Confirmation Date" means the date on which the
Confirmation Order is entered.
1.44."Confirmation Hearing" means the hearing conducted
by the Court on confirmation of the Plan.
1.45."Confirmation Order" means an order of the Court,
approving NRG as the prevailing Competing Bidder (as defined in
the Bidding Procedures Order), confirming the Plan pursuant to
Bankruptcy Code section 1129, and approving and authorizing the
Acquisition Agreement and the Transaction Documents to which
O'Brien is to be a party, in the form filed by the Proponents
together herewith with such changes thereto as the Court may
require that are reasonably satisfactory to the Proponents.
1.46."Contingent Claim" means a Claim that is
contingent or unliquidated and that has not been Allowed by Final
Order.
1.47."Court" means the United States Bankruptcy Court
for the District of New Jersey, Judge Rosemary Gambardella
presiding, or such other court as may have jurisdiction over the
Chapter 11 Case.
1.48."Creditor Reinstatement Treatment" means either
the Biogas Claims Reinstatement Treatment or the
Reinstatement/Nonimpairment Treatment.
1.49."Creditors' Committee" means the Official
Committee of Unsecured Creditors of O'Brien appointed in the
Chapter 11 Case of O'Brien.
1.50."Cure Payments" means the aggregate amount
required to be paid to any holders of Secured Claims on the
Effective Date that are receiving the Biogas Claim Reinstatement
Treatment or the Reinstatement/Nonimpairment Treatment under the
Plan.
1.51."Debtor" means O'Brien.
1.52."Deferred Administrative Shortfall Amount" has the
meaning given to it in Section 10.8.(b)
1.53."Deferred DIP Loan Amount" shall have the meaning
given to it in Section 6.12(a) of the Plan.
1.54."Deferred Wexford Claim Amount" shall have the
meaning given to it in Section 6.12(b) of the Plan.
1.55."Deficiency Amount" means, with respect to a Claim
that is secured by a Lien on Collateral, the amount by which the
Claim exceeds the sum of (i) the amount realized or realizable
upon the exercise of any set-off rights of the holder of such
Claim against the Debtor under sections 506 and 553 of the
Bankruptcy Code, plus (ii) if the Collateral securing such Claim
is disposed of prior to the Effective Date, the amount of net
6
proceeds realized therefrom or, if the Collateral is not so
disposed of, the value of the interest of the holder of the Claim
in the Debtor's interest in such Collateral, as determined by the
Court under section 506 of the Bankruptcy Code; provided,
however, that if the holder of such Claim makes the election
provided in section 1111(b) of the Bankruptcy Code, there shall
be no Deficiency Amount in respect of such Claim.
1.56."Designated Receivable" means the Insurance
Receivable or the Pakistani Receivable.
1.57."DIP Loan" shall have the meaning given to it in
the Acquisition Agreement.
1.58."DIP Loan Outstanding Amount" means the amount of
the DIP Loan that is outstanding and due and owing to NRG
immediately prior to consummation of the Plan on the Effective
Date.
1.59."Disallowed Claim" or "Disallowed Interest" shall
mean a Claim against, or Interest in, the Debtor, or any portion
thereof, that has been disallowed by Final Order.
1.60."Disclosure Statement" means the Master Disclosure
Statement filed by the Debtor, together with the supplemental
disclosure statement relating to the Plan filed by the Proponents
and any supplemental disclosure statement filed by the Proponents
of any other plan of reorganization for the Debtor with respect
to such plan of reorganization, as filed with the Court pursuant
to section 1125 of the Bankruptcy Code and the Bidding Procedures
Order.
1.61."Disclosure Statement Order" means the order of
the Court entered on November 17, 1995, approving the Disclosure
Statement pursuant to section 1125 of the Bankruptcy Code and
establishing the procedures and method of providing notice of the
Confirmation Hearing.
1.62."Disputed Claim" or "Disputed Interest" means a
Claim against, or Interest in, the Debtor, to the extent that a
proof of claim or interest has been filed or deemed filed under
applicable law, (i) as to which an objection has been filed, (ii)
which is a Contingent Claim that has not been withdrawn or
disallowed by Final Order, (iii) that is designated as disputed
in the Debtor's Schedules, (iv) in an amount in excess of that
amount which has been listed by the Debtor in its Schedules as
other than disputed, contingent or unliquidated, or (v) that has
not been listed in the Debtor's Schedules.
1.63."Disputed Claims Reserve" shall have the meaning
given to it in Section 10.7(c) of the Plan.
1.64."Distribution Date" means (i) for any Claim or
Interest that is an Allowed Claim or Allowed Interest on the
Effective Date, the Effective Date or as soon thereafter as
practicable, but in no event more than ten days thereafter and
(ii) for any Claim or Interest that is a Disputed Claim or
Disputed Interest on the Effective Date, the date as soon as
practicable, but in no event more than 30 days, after the date on
which such Claim or Interest becomes an Allowed Claim or Allowed
Interest.
7
1.65."Distribution Record Date" means the close of
business in the City of New York, State of New York, on the
Effective Date or such other date as may be fixed by order of the
Court.
1.66."Distribution Reserves" means the Administrative
and Priority Claims Reserve and the Disputed Claims Reserve.
1.67."Effective Date" means a Business Day designated
by the Proponents in accordance with the Acquisition Agreement,
on which (i) the Confirmation Order is not stayed and (ii) all
conditions to the consummation of the Plan have been satisfied or
waived as provided in Article XI.
1.68."Effective Date Administrative and Cure Payments"
means the sum of the aggregate amount of Administrative Claims
and Priority Claims that are Allowed and are due and payable on
the Effective Date (excluding the DIP Loan Outstanding Amount and
the Wexford Administrative Claim) and the Cure Payments.
1.69."Effective Date Administrative Shortfall Loan"
shall have the meaning set forth in Section 10.8(b).
1.70."11% Subordinated Debentures (2010)" means the 11%
Convertible Senior Subordinated Debentures issued by O'Brien, due
March 15, 2010, pursuant to the 11% Subordinated Debentures
(2010) Indenture.
1.71."11% Subordinated Debentures (2011)" means the 11%
Convertible Senior Subordinated Debentures issued by O'Brien, due
March 15, 2011, pursuant to the 11% Subordinated Debenture (2011)
Indenture.
1.72."11% Subordinated Debentures (2010) Indenture"
means the indenture, dated as of March 15, 1990, between O'Brien
and Fidelity Bank, National Association, as Indenture Trustee.
1.73."11% Subordinated Debentures (2011) Indenture"
means the Indenture, dated as of March 14, 1991, between O'Brien
and United Jersey Bank, as Indenture Trustee.
1.74."Entity" means an individual, a corporation, a
partnership, an association, a joint stock company, a joint
venture, an estate, a trust, an unincorporated organization, a
government or any subdivision thereof or any other person or
entity.
1.75."Equipment Held for Sale" shall mean any item of
energy equipment, consisting mainly of gas and steam turbines,
owned by Reorganized O'Brien following the Effective Date and not
utilized in a project operated by a Subsidiary, including, to the
extent applicable, the energy equipment described in the
appraisal dated July 14, 1995 delivered to O'Brien by Belyea
Company Incorporated and the appraisal dated June 13, 1995
delivered to O'Brien by Arthur Andersen & Co., SC.
1.76."Equity Committee" has the meaning given to it in
the first paragraph of the Plan.
1.77."Equityholders Cash Payment" means the $7.5
million Cash payment to be made pursuant to Section 5.14 of the
Plan to the holders of Old Common Stock by
8
NRG, an affiliate of NRG, or Reorganized O'Brien in such manner
as agreed between counsel to NRG and counsel to the Equity
Committee prior to the Effective Date.
1.78."Estate" means the estate of the Debtor under
section 541 of the Bankruptcy Code.
1.79."Excess Cash" shall have the meaning given to it
in Section 6.12(c) of the Plan.
1.80."Fee Request Notice" shall have the meaning given
to it in Section 10.2(b) of the Plan.
1.81."Final Order" means (1) an order of the Court as
to which the time to appeal, petition for certiorari, or move for
reargument or rehearing has expired and as to which no appeal,
petition for certiorari, or other proceedings for reargument or
rehearing shall then be pending or, (2) in the event that an
appeal, writ or certiorari, reargument, or rehearing thereof has
been sought, such order of the Court shall have been affirmed by
the highest court to which such order was appealed, or certiorari
has been denied, or from which reargument or rehearing was
sought, and the time to take any further appeal, petition for
certiorari or move for reargument or rehearing shall have
expired; provided, however, that no order shall fail to be a
Final Order solely because of the possibility that a motion
pursuant to Rule 60 of the Federal Rules of Civil Procedure may
be filed with respect to the order.
1.82."Final Resolution Date" means the date on which
all Disputed Claims have been Allowed or disallowed by Final
Order or withdrawn or otherwise finally resolved.
1.83."5 Percent Shareholder" means a shareholder
described in Section 382(k)(7) of the Tax Code.
1.84."General Unsecured Claim" means any Claim other
than an Administrative Claim, Priority Claim, Allowed Secured
Claim, Old Subordinated Noteholder Securities Claim or Old
Stockholder Securities Claim, including, but not limited to, (i)
any Claim in respect of the Deficiency Amount of any Secured
Claim classified in any of Classes 1 through 14 hereunder, as
determined in accordance with Bankruptcy Code section 506, (ii)
Old Subordinated Noteholder Claims held by holders of Old
Subordinated Notes on the Distribution Record Date, and (iii) any
Claim arising from the rejection by the Debtor of executory
contracts and unexpired leases in accordance with Section 8.1 of
the Plan.
1.85."General Unsecured Claims Cash Payment" means
$77,967,000. Notwithstanding anything herein to the contrary and
without limiting the generality of any provision hereof, neither
Reorganized O'Brien nor NRG shall be entitled to the return of
the General Unsecured Claims Cash Payment, the entire amount of
which shall be distributable to the holders of Allowed Claims.
1.86."Insurance Receivable" means the $1 million
insurance receivable described on the Pro Forma Balance Sheet of
Parlin Cogen as of June 30, 1995.
1.87."Interest" means the interest represented by any
equity security, as defined in Bankruptcy Code section 101(16).
1.88."ISRA Approval" has the meaning given to it in
Section 3.10(b) of the Acquisition Agreement.
9
1.89."Lien" means any charge against or interest in
property to secure payment of a debt or performance of an
obligation.
1.90."Liquidating Asset Management Agreement" shall
mean the Asset Management Agreement into which O'Brien and
Wexford or its Affiliate will enter, effective on the Effective
Date, providing for the management of the Liquidating Assets by
Wexford or such Affiliate, in substantially the form attached as
an Exhibit to the Acquisition Agreement; provided that the fees
payable under the Liquidating Asset Management Agreement shall be
subject to Court approval prior to the payment thereof and
modified if and to the extent necessary for such fees to be
determined by the Court to be reasonable pursuant to Bankruptcy
Code section 1129(a)(4).
1.91."Liquidating Assets" means all of O'Brien's right,
title and interest in and to (i) all of the outstanding common
stock of Philadelphia Cogen and any management contracts relating
to the Philadelphia Water Department Project to which O'Brien or
any Affiliate thereof (other than Philadelphia Cogen) is a party;
(ii) all of the equity interest in Philadelphia Biogas Supply,
Inc., O'Brien Energy Services, Inc., Puma Power Plant, Ltd. and
American Hydrotherm Corp.; and (iii) the Equipment Held for Sale.
1.92."Management Agreement" means the management
agreement into which Reorganized O'Brien and NRG (or one or more
of its Affiliates) will enter, effective on the Effective Date,
providing for the provision of certain services relating to the
management of Reorganized O'Brien and its subsidiaries following
the Effective Date, substantially in the form attached as an
Exhibit to the Acquisition Agreement.
1.93."Natwest" means National Westminster Bank, plc.
1.94."New By-laws" means the new by-laws of Reorganized
O'Brien to take effect on the Effective Date, substantially in
the form attached as an Exhibit to the Acquisition Agreement.
1.95."New Certificate of Designation" means a
certificate of designation setting forth the terms of the New
O'Brien Preferred Stock, which certificate of designation shall
be filed with the Court not less than ten days prior to
commencement of the Confirmation Hearing.
1.96."New Certificate of Incorporation" means the
amended and restated certificate of incorporation of Reorganized
O'Brien to take effect on the Effective Date, substantially in
the form attached as an Exhibit to the Acquisition Agreement.
1.97."New O'Brien Common Stock" means shares of new
common stock of Reorganized O'Brien, $.01 par value, to be issued
on the Effective Date pursuant to the Plan.
1.98."New O'Brien Preferred Stock" means shares of
Class A Preferred Stock of Reorganized O'Brien, $.01 par value,
having the rights, preferences and privileges provided in the New
Certificate of Designation, to be issued to holders of Wexford-
Related Unsecured Claims (as provided in Section 5.12 and 5.13).
1.99."Newark Cogen" means O'Brien (Newark)
Cogeneration, Inc.
1.100."Newark Loan Proceeds" means $24 million,
representing the sum of the Newark Refinancing Proceeds and the
proceeds of the NRG Newark Cogen Loan.
10
1.101."Newark Project" means the gas-fired Newark
Cogeneration Facility owned by Newark Cogen.
1.102."Newark Project Refinancing" means a refinancing
of the debt that is secured by a mortgage on the Newark Project.
1.103."Newark Refinancing Documentation" means the loan
agreement, mortgage and other loan documentation relating to the
Newark Project Refinancing.
1.104."Newark Refinancing Proceeds" means the proceeds,
net of closing costs and expenses and the existing mortgage debt
being refinanced, realized from the Newark Project Refinancing of
up to $24 million, which proceeds shall be distributed by Newark
Cogen to O'Brien on the Effective Date.
1.105."Non-Accepting Secured Creditor" means any holder
of an Allowed Secured Claim that objects to or votes against the
Plan and as a result receives the Collateral Putback Treatment
instead of the Cash Payoff Treatment.
1.106."Non-Reinstated Secured Claim Supplemental
Payment" means a cash payment to be made on the Effective Date to
each holder of an Allowed Non-Reinstated Secured Claim equal to
the amount of interest that accrues, at 5% per annum, for the
period from February 1, 1996 until the Effective Date, on the
Cash Payoff Treatment amount specified in the section of Article
V that is applicable to such Allowed Non-Reinstated Secured
Claim.
1.107."Non-Reinstated Secured Claims" means those
Secured Claims treated under the Plan that are not receiving
Creditor Reinstatement Treatment.
1.108."NRG" has the meaning set forth in the first
paragraph of the Plan.
1.109."NRG Discretionary Supplemental Loan" has the
meaning set forth in Section 6.10.
1.110."NRG Mandatory Supplemental Loan" has the meaning
set forth in Section 6.10.
1.111."NRG New Loan" means a loan that will be made by
NRG to Reorganized O'Brien on the Effective Date in the amount of
$45 million pursuant to the NRG New Loan Agreement.
1.112."NRG New Loan Agreement" means a loan agreement
into which Reorganized O'Brien and NRG will enter, effective on
the Effective Date, substantially in the form filed with the
Court on January 2, 1996.
1.113."NRG New Loan Expenses" means the reasonable out-
of-pocket costs and expenses of NRG up to $100,000 referred to in
Section 9.5 of the NRG New Loan Agreement.
1.114."NRG New Loan Proceeds" means the proceeds
realized by Reorganized O'Brien from the NRG New Loan, net of the
NRG New Loan Expenses of up to $100,000.
11
1.115."NRG Newark Cogen Loan" means a loan that will be
made by NRG to O'Brien, on the Effective Date, pursuant to the
NRG Newark Loan Documentation in an amount equal to the amount
(if any) by which $24 million exceeds the Newark Refinancing
Proceeds, which loan will be secured, by a Lien on all payments
received or receivable by O'Brien from Newark Cogen, whether by
dividend, pursuant to any management agreement between O'Brien
and Newark Cogen or otherwise.
1.116."NRG Newark Cogen Loan Documentation" means the
loan agreement, mortgage and other loan documentation relating to
the NRG Newark Cogen Loan, substantially in the form filed with
the Court on January 2, 1996.
1.117."NRG Supplemental Loan" means the NRG
Discretionary Supplemental Loan and the NRG Mandatory
Supplemental Loan.
1.118."NRG Supplemental Loan Documentation" means the
loan agreement and other loan documentation relating to the NRG
Supplemental Loan, substantially in the form filed with the Court
on January 2, 1996, subject to such changes as are appropriate to
give effect to Section 10.8(b) of the Plan.
1.119."Objection Resolution Expenses" has the meaning
set forth in Section 10.2(b) of the Plan.
1.120."O'Brien" has the meaning set forth in the first
paragraph of the Plan.
1.121."O'Brien Parlin Paydown Contribution" means a
contribution by O'Brien to Parlin Cogen on the Effective Date of
$1 million that will be applied to pay down the outstanding
amount owing to Natwest under the Parlin Credit Agreement.
1.122."O'Brien Parlin Reserve Contribution" means the
amount of Cash that Reorganized O'Brien is required to contribute
to Parlin Cogen to fund fully the Parlin Reserve, which shall be
net of any Cash held by Parlin Cogen that is available to fund
the Parlin Reserve.
1.123."OES" means O'Brien Energy Services Company.
1.124."Old Common Stock" means the authorized shares of
Class A Common Stock and Class B Common Stock of O'Brien, par
value $.01 per share, issued and outstanding on the Petition
Date.
1.125."Old Indenture Trustees" means, collectively,
United Jersey Bank, BankAmerica National Trust Company and
Bankers Trust Company, in each case as an indenture trustee or
successor indenture trustee or successor indenture trustees.
1.126."Old Indentures" means the indentures pursuant to
which the Old Subordinated Notes were issued by O'Brien.
1.127."Old Options" means the options to purchase
shares of Old Common Stock granted pursuant to the Old Stock
Option Plans and any other outstanding options, warrants or other
rights to acquire any such shares.
1.128."Old Public Claims and Interests" means the
Allowed Old Subordinated Noteholder Claims and Allowed Interests
representing Old Common Stock.
12
This term specifically excludes any Old Subordinated Noteholder
Securities Claims and Old Stockholder Securities Claims.
1.129."Old Stock Option Plans" means the 1987 Stock
Option Plan, the 1989 Stock Option Plan, and the 1991 Stock
Option Plan and any other stock option plan adopted by O'Brien.
1.130."Old Stockholder Securities Claim" means a Claim
for damages or rescission arising out of the purchase or sale of
Old Common Stock, or for reimbursement, contribution or
indemnification on account of such a Claim.
1.131."Old Subordinated Noteholder Claims" means those
Claims against O'Brien arising under any of the Old Subordinated
Notes. The term specifically excludes any Old Subordinated
Noteholder Securities Claims or any Claims held by the Old
Indenture Trustees for fees and expenses that are not
subordinated under the terms of the Old Debentures to the holders
of Senior Debt.
1.132."Old Subordinated Noteholder Securities Claim"
means any Claim for damages or rescission arising from or out of
the purchase or sale of an Old Subordinated Note, or for
reimbursement, contribution or indemnification on account of such
a Claim.
1.133."Old Subordinated Notes" means (i) the 7 3/4%
Subordinated Debentures, (ii) the 11% Subordinated Debentures
(2010) and (iii) the 11% Subordinated Debentures (2011).
1.134."Pakistani Receivable" means the $1.24 million
receivable held by O'Brien in respect of the Kribawa Project.
1.135."Parlin Cogen" means O'Brien (Parlin)
Cogeneration, Inc.
1.136."Parlin Credit Agreement" means the Construction
and Term Credit Agreement, dated March 1, 1989, between Parlin
Cogen and Natwest, as amended.
1.137."Parlin Reserve" means the $3.5 million reserve
required to be set aside pursuant to Section 7.1(c) of the Parlin
Credit Agreement or such lower amount as Natwest may agree.
1.138."Petition Date" means the date on which the
Debtor filed a voluntary petition for relief under Chapter 11 of
the Bankruptcy Code.
1.139."Philadelphia Cogen" means O'Brien (Philadelphia)
Cogeneration, Inc., a Delaware corporation.
1.140."Philadelphia Water Development Project" shall
mean the cogeneration and standby electric generating facility
currently owned by Philadelphia Cogen.
1.141."Plan" means this Composite Fourth Amended and
Restated Plan of Reorganization for O'Brien proposed by the
Proponents, as it may be amended or supplemented as provided
herein.
1.142."Plan Cash Insufficiency" has the meaning set
forth in Section 6.10.
13
1.143."Plan Documents" means the documents referred to
in the Plan that aid in effectuating the Plan and that, unless
otherwise expressly provided herein, will be filed with the Court
no later than ten days prior to commencement of the Confirmation
Hearing.
1.144."Post-Petition Interest Fund" means a cash fund
consisting of any amount initially deposited in the Cash Payment
Fund that at any time is determined to be in excess of the
Required Unsecured Claims Payment Amount, which cash fund shall
be distributed to the holders of Allowed Non-Reinstated Secured
Claims and Allowed General Unsecured Claims as and to the extent
provided in Section 6.11.
1.145."Present Value" means the value, as of the
Effective Date, of cash payments to be made to holders of Allowed
Non-Reinstated Secured Claims and Allowed General Unsecured
Claims under the Plan, determined by discounting such payments to
present value at the legal rate of interest or, for purposes of
discounting to present value amounts deposited in the Cash
Payment Fund, such other rate that the Bankruptcy Court may
determine is required.
1.146."Priority Claim" means a Claim entitled to
priority under Bankruptcy Code sections 507(a)(3), 507(a)(4), or
507(a)(7) that is outstanding on the Effective Date.
1.147."Pro Rata Share" means, with reference to any
distribution on account of any Allowed Claim or Interest in any
particular class, subclass or specified group of classes of
Claims or Interests, a distribution equal in amount to the ratio
(expressed as a percentage) that the amount of such Allowed Claim
or Interest bears at the time of such distribution to the
aggregate amount of all Claims (including Disputed Claims, but
not including Disallowed Claims) or Interests in such class,
subclass or specified group of classes and, with respect to any
distribution on account of an Allowed Interest in respect of Old
Common Stock, Pro Rata Share means a distribution equal to the
ratio (expressed as a percentage) that the number of shares of
such Old Common Stock bears at the time of such distribution to
the aggregate amount of all shares of Old Common Stock (including
shares of Class A Common Stock and Class B Common Stock of
O'Brien); provided that in the case of any provision of the Plan
that provides for a holder of an Allowed Class 15B Claim or
Allowed Class 15C Claim to receive a Pro Rata Share of the Class
15B Cash Payment Fund or the Class 15C Cash Payment Fund, the Pro
Rata Share of each holder of an Allowed Class 15B Claim or an
Allowed Class 15C Claim shall be determined as though the Wexford-
Related Class 15B Claims and Wexford-Related Class 15C Claims are
not Class 15B Claims and Class 15C Claims, respectively.
14
1.148."Professional Fees" means fees and expenses of
professionals retained pursuant to an order of the Court pursuant
to Bankruptcy Code section 327 or 1103 that are awarded by the
Court under Bankruptcy Code section 330(a) in respect of services
rendered by such professionals on or prior to the Effective Date.
1.149."Purchased Company Shares" means the shares of
New O'Brien Common Stock to be acquired by NRG under the
Acquisition Agreement and the Plan representing 41.86% of the
shares of New O'Brien Common Stock to be issued and outstanding
on and after the Effective Date.
1.150."Purchased Subsidiary Shares" means all of the
issued and outstanding shares of capital stock of each of the
Acquired Subsidiaries.
1.151."Reinstatement/Nonimpairment Treatment" means, as
to any Secured Claim treated under the Plan, the following
treatment: (A) such Claim shall not be bifurcated into an Allowed
Secured Claim and an Allowed Unsecured Claim based on a
determination of a Deficiency Amount in respect of such Claim;
(B) if applicable, the maturity of such Claim shall be
reinstated; (C) any defaults with respect to such Claim other
than the kind specified in Bankruptcy Code section 365(b)(2)
shall be cured; (D) the holder of such Claim shall be compensated
for any damages incurred by such holder as a result of any
reasonable reliance by such holder on any contractual provision
or applicable law that entitles such holder to demand or receive
accelerated payment of such Claim after any default with respect
to such Claim; and (E) the legal, equitable and contractual
rights to which such Claim entitles the holder thereof shall
otherwise be left unaltered.
1.152."Rejected Contracts" has the meaning set forth in
Section 8.1.
1.153."Reorganized O'Brien" means O'Brien following
consummation of the Plan on the Effective Date.
1.154."Required Unsecured Claims Payment Amount" means
cash payments that have a Present Value equal to the aggregate
amount of all Allowed General Unsecured Claims other than the
Wexford-Related Unsecured Claims.
1.155."Reserved Administrative and Cure Claims Cash
Amount" means cash equal to the sum of $14,468,000.
1.156."Retained Working Capital Amount" means Cash held
by O'Brien on the Effective Date in an amount equal to $1 million
to be retained by Reorganized O'Brien on the Effective Date for
working capital purposes.
1.157."Schedules" means the schedules filed by the
Debtor in its Chapter 11 Case pursuant to Bankruptcy Rule 1007,
as such schedules may be amended from time to time in accordance
with Bankruptcy Rule 1009.
1.158."Secured Claim" means a Claim, to the extent of
the value of any Lien on or security interest in property of the
Debtor that secures payment of such Claim.
1.159."Senior Debt" means the holders of 'Senior Debt'
or 'Senior Indebtedness,' as those terms are defined in the Old
Indentures and to which the holders of Old Subordinated Notes are
subordinated pursuant to the Old Indentures. For purposes of
this Plan, if the holder of each of Allowed Claims in respect to
Senior Debt of CoreStates New Jersey National Bank, CoreStates
Bank, First Fidelity Bank, N.A., and Heller Financial, Inc.
accepts the Plan (both as the holder of Secured Claims treated as
Classes 2, 3, 5 and 7 and as the holder of an Allowed General
Unsecured Claim in respect of Senior Debt), the aggregate amount
of Allowed Claims held by such holder that are treated in Class
15A shall be deemed to be $11,002,070 (less $455,000 in respect
of the Secured Class 2 Claim of CoreStates New Jersey National
Bank, $495,000 in respect of the Secured Class 3 Claim of
CoreStates Bank, $155,588 in respect of the Secured Class 5 Claim
of First Fidelity Bank, N.A. and $1,360,000 in respect of the
Secured Class 7 Claim of Heller Financial, Inc.). For purposes
of this Plan, if The Bank of New York accepts the Plan (both as
the holder of a Secured Claim treated in Class 11 and as the
holder of an Allowed General Unsecured Claim in respect of Senior
Debt), the Allowed Claims in respect to Senior Debt of The Bank
of New York treated in Class 15A shall be deemed to be $5,004,355
(less the sum of $1,106,000 in respect of its Class 11 Secured
Claim). To the extent that such Claims if deemed allowed
15
pursuant to Section 1.151, include amounts for attorneys' fees,
such amounts shall be subject to approval of the Bankruptcy Court
in the event an objection is filed, other than by any of the
Proponents, prior to the Confirmation Hearing.
1.160."7 3/4% Subordinated Debentures" means the 7 3/4%
Convertible Senior Subordinated Debentures issued by O'Brien, due
March 15, 2002, pursuant to the 7 3/4% Subordinated Debentures
Indenture.
1.161."7 3/4% Subordinated Debentures Indenture" means
the Indenture, dated as of March 15, 1987, between O'Brien and
United Jersey Bank as Indenture Trustee.
1.162."Stock Transfer Agent" has the meaning set forth
in Section 6.6(a).
1.163."Subsidiary" has the meaning set forth in the
Acquisition Agreement.
1.164."Supplemental Interest Amount" means the sum of
(i) the Class 15 Supplemental Payment Amount and (ii) the Wexford-
Related Class 15 Supplemental Payment.
1.165."Tax Claim" means a Claim of the kind specified
in section 507(a)(7) of the Bankruptcy Code.
1.166."Tax Code" means the Internal Revenue Code of
1986, as amended from time to time.
1.167."Transaction Documents" means the contracts,
agreements, documents and instruments contemplated to be entered
into by the terms of the Acquisition Agreement.
1.168."Treatment Election Notice" has the meaning given
to it in Section 5.1.
1.169."Unresolved Administrative and Priority Claim"
means an Administrative Claim or Priority Claim against the
Debtor (i) in the case of a Claim as to which a proof of Claim
has been filed prior to the Effective Date, that is a Disputed
Claim on the Effective Date, or (ii) in the case of a Claim as
to which a proof of claim has not been filed prior to the
Effective Date, any other such Claim of any kind or nature that
is not an Allowed Claim on the Effective Date other than an
Administrative Claim that represents an undisputed liability
incurred by the Debtor in the ordinary course of business during
the Chapter 11 Case that in accordance with its terms is due and
payable on the Effective Date; provided that "Unresolved
Administrative and Priority Claim" shall not include (x) the
Administrative Claim of NRG in respect of the DIP Loan
Outstanding Amount; (y) the Wexford Administrative Claim or (z)
any Professional Fees awarded prior to the Effective Date that
are to be paid on or as soon as practicable but no more than five
Business Days after the Effective Date pursuant to clause (v) of
Article II hereof; in each case subject to any applicable bar
date established by the Court upon motion filed by the Debtor.
1.170."Wexford" has the meaning given to it in the
first paragraph of the Plan.
1.171."Wexford Administrative Claim" means an
Administrative Claim of Wexford that, upon the Effective Date,
will be deemed Allowed in the amount of $200,000 and that will be
in full settlement and satisfaction of any indemnification Claims
of Wexford or its affiliates against the Debtor with respect to
legal fees and expenses and any Claims under Bankruptcy Code
section 503(b)(3)(D) based on Wexford having made a substantial
16
contribution to the Chapter 11 Case; provided that such
Administrative Claim shall be subject to approval of the Court
under Bankruptcy Code section 1129(a)(4) as reasonable.
1.172."Wexford-Related Class 15 Supplemental Payment"
means the Wexford-Related Class 15B Supplemental Payment and the
Wexford-Related Class 15C Supplemental Payment.
1.173."Wexford-Related Class 15B Claims" has the
meaning given to it in Section 5.12 of the Plan.
1.174."Wexford-Related Class 15B Supplemental Payment"
means a cash payment to be made on the applicable Distribution
Date to each of the holders of Wexford-Related Class 15B Claims
equal to the amount of interest that accrues, at 5% per annum,
for the period from February 1, 1996 until the Effective Date, on
the amount of such holder's Wexford-Related Class 15B Claims.
1.175."Wexford-Related Class 15C Supplemental Payment"
means a cash payment to be made on the applicable Distribution
Date to each of the holders of Wexford-Related Class 15C Claims
equal to the amount of interest that accrues, at 5% per annum,
for the period from February 1, 1996 until the Effective Date, on
the amount of such holder's Wexford-Related Class 15C Claims.
1.176."Wexford-Related Class 15C Claims" has the
meaning given to it in Section 5.13 of the Plan.
1.177."Wexford-Related Unsecured Claims" means,
collectively, the Wexford-Related Class 15B Claims and the
Wexford-Related Class 15C Claims.
Article II: Unclassified Claims
Unless otherwise agreed to by the holder of the Claim and the
Debtor, each holder of an Allowed Administrative Claim or an
Allowed Priority Claim against the Debtor shall receive on the
Distribution Date Cash equal to the amount of such Allowed Claim;
provided, however, that (i) Administrative Claims that represent
undisputed liabilities incurred by the Debtor in the ordinary
course of business during the Chapter 11 Case of the Debtor shall
be paid in the ordinary course of business and in accordance with
any terms and conditions that may be applicable under any
agreements relating thereto; (ii) the Debtor shall provide for
the full payment of any Administrative Claim or Priority Claim
against the Debtor that constitutes an Unresolved Administrative
and Priority Claim by establishing the Administrative and
Priority Claims Reserve on the Effective Date, which, as provided
in Section 10.8 of the Plan, shall be the sole source of payment
in respect of such Claims after the Effective Date; (iii) the
Administrative Claim of NRG in respect of the DIP Loan
Outstanding Amount shall not be due and payable on the Effective
Date and shall be repaid with deferred cash payments as and to
the extent provided in Section 6.12(a); (iv) the Wexford
Administrative Claim shall not be due and payable on the
Effective Date and shall be repaid with deferred cash payments as
and to the extent provided in Section 6.12(b) and (v) the amount
of any Professional Fees awarded by the Court prior to the
Effective Date (excluding any amount required to be held back
pending allowance by the Court after the filing of final fee
applications) shall be paid on the Effective Date to the
professionals entitled thereto as soon as practicable but no
later than five Business Days thereafter (subject to the effect
of any order entered by the Court following the filing of final
fee applications that
17
finally determines the aggregate Allowed amount of Professional
Fees to be awarded to such professionals).
Article III: Classification of Claims and Interests
Claims and Interests that are required to be classified
under Bankruptcy Code section 1123(a)(1) are hereby divided into
the following classes:
3.1 Class 1--BLT Leasing Corp. Class 1 consists of
the Allowed Secured Claim of BLT Leasing Corp. in respect of its
first priority Lien on a Caterpillar G399 generator set and
related Collateral, as and to the extent specified in the
applicable security documentation between BLT Leasing Corp. and
O'Brien.
3.2 Class 2--CoreStates New Jersey National Bank.
Class 2 consists of the Allowed Secured Claims of CoreStates New
Jersey National Bank in respect of its first priority Liens on
certain generator sets, turbine sets, boilers and related
Collateral, as and to the extent specified in the applicable
security documentation between CoreStates New Jersey National
Bank and O'Brien. Each such Allowed Secured Claim that arises
out of a particular equipment financing transaction shall be
classified in a separate subclass.
3.3 Class 3--CoreStates Bank. Class 3 consists of the
Allowed Secured Claims of CoreStates Bank in respect of its first
priority Liens on certain turbine sets, and related Collateral,
as and to the extent specified in the applicable security
documentation between CoreStates Bank and O'Brien. Each such
Allowed Secured Claim that arises out of a particular equipment
financing transaction shall be classified in a separate subclass.
3.4 Class 4--Financing for Science International, Inc.
Class 4 consists of the Allowed Secured Claims of Financing for
Science International, Inc., in respect of its first priority
Liens on certain generator sets and related Collateral, as and to
the extent specified in the applicable security documentation
between O'Brien and Financing for Science International, Inc.
Each such Allowed Secured Claim that arises out of a particular
equipment financing transaction shall be classified in a separate
subclass.
3.5 Class 5--First Fidelity Bank, N.A. Class 5
consists of the Allowed Secured Claims of First Fidelity Bank,
N.A., in respect of its first priority Liens on certain generator
sets and related Collateral, as and to the extent specified in
the applicable security documentation between First Fidelity
Bank, N.A. and O'Brien. Each such Allowed Secured Claim that
arises out of a particular equipment financing transaction shall
be classified in a separate subclass.
3.6 Class 6--General Electric Capital Corporation.
Class 6 consists of the Allowed Secured Claims of General
Electric Capital Corporation in respect of its first priority
Liens on certain generator sets and related Collateral, as and to
the extent specified in the applicable security documentation
between O'Brien and General Electric Capital Corporation. Each
such Allowed Secured Claim that arises out of a particular
equipment financing transaction shall be classified in a separate
subclass.
3.7 Class 7--Heller Financial, Inc. Class 7 consists
of the Allowed Secured Claim of Heller Financial, Inc. in respect
of its first priority Lien on certain steam turbine sets,
generator sets and related Collateral, as and to the extent
specified in the applicable security documentation between
O'Brien and Heller Financial, Inc.
18
3.8 Class 8--MDFC Equipment Leasing Corp. Class 8
consists of the Allowed Secured Claims of MDFC Equipment Leasing
Corp. in respect of its first priority Liens on certain generator
sets and related Collateral, as and to the extent specified in
the applicable security documentation between O'Brien and MDFC
Equipment Leasing Corp. and the Stipulation and Order entered
into by the Court on August 7, 1995 (for the purposes of the
Plan, any claims of MDFC Equipment Leasing Corp. under any
equipment lease will be deemed to be Secured Claims, whether or
not such lease is a 'true lease' or a lease that is intended to
create a security interest). Each such Allowed Secured Claim
that arises out of a particular equipment financing transaction
shall be classified in a separate subclass.
3.9 Class 9--Meridian Bank. Class 9 consists of the
Allowed Secured Claims of Meridian Bank in respect of its first
priority Liens on certain generator sets and related Collateral,
as and to the extent specified in the applicable security
documentation between O'Brien and Meridian Bank. Each such
Allowed Secured Claim that arises out of a particular equipment
financing transaction shall be classified in a separate subclass.
3.10 Class 10--PECO Energy Company. Class 10 consists
of the Allowed Secured Claim of PECO Energy Company in respect of
its first priority Lien on shares of capital stock of
Philadelphia Cogen and certain other Collateral, as and to the
extent specified in the applicable security documentation between
O'Brien and PECO Energy Company.
3.11 Class 11--The Bank of New York (Equipment). Class
11 consists of the Allowed Secured Claims of The Bank of New York
in respect of its first priority Liens on certain gas turbine
sets, generator sets, steam turbine sets and related Collateral,
as and to the extent specified in the applicable security
documentation between O'Brien and The Bank of New York. Each
such Allowed Secured Claim that arises out of a particular
equipment financing transaction shall be classified in a separate
subclass.
3.12 Class 12--The Bank of New York (Documents). Class
12 consists of all Allowed Secured Claims of The Bank of New York
in respect of its first priority Lien on certain agreements and
a standby letter of credit, as and to the extent provided in the
applicable security documentation between O'Brien and The Bank of
New York.
3.13 Class 13--Natwest. Class 13 consists of two
subclasses, Class 13A and Class 13B. Class 13A consists of the
Allowed Secured Claims of Natwest in respect of its first
priority Lien on the shares of common stock of Newark Cogen.
Class 13B consists of the Allowed Secured Claims of Natwest in
respect of its first priority Lien on the shares of common stock
of Parlin Cogen.
3.14 Class 14--Other Secured Claims. Class 14 consists
of Allowed Secured Claims against O'Brien other than those that
are specifically classified in any of Classes 1 through 13. Each
Allowed Secured Claim that is classified in Class 14 shall be
classified in a separate subclass.
3.15 Class 15A--Senior Debt. Class 15A consists of
Allowed General Unsecured Claims in respect of Senior Debt.
3.16 Class 15B--Non-Subordinated Unsecured Claims.
Class 15B consists of Allowed General Unsecured Claims other than
those in respect of Senior Debt or Old Subordinated Noteholder
Claims.
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3.17 Class 15C--Old Subordinated Noteholder Claims.
Class 15C consists of Allowed Old Subordinated Noteholder Claims.
3.18 Class 16--Old Common Stock. Class 16 consists of
Allowed Interests in O'Brien represented by the Old Common Stock.
3.19 Class 17--Old Subordinated Noteholder Securities
Claims. Class 17 consists of Allowed Old Subordinated Noteholder
Securities Claims.
3.20 Class 18--Old Stockholder Securities Claims.
Class 18 consists of Allowed Old Stockholder Securities Claims.
3.21 Class 19--Old Options. Class 19 consists of the
Allowed Interests in O'Brien represented by the Old O'Brien
Options.
Article IV: Treatment of Classes Not Impaired by the
Plan
Classes not impaired by the Plan shall be treated as
follows:
4.1 Class 1 (BLT Leasing Corp.). BLT Leasing Corp.,
as the holder of the Allowed Claim in Class 1, will receive the
Reinstatement/Nonimpairment Treatment.
4.2 Class 6 (General Electric Capital). General
Electric Capital Corporation, as the holder of the Allowed Class
6 Claim, will receive the Reinstatement/Nonimpairment Treatment.
4.3 Class 9 (Subclass of Meridian Bank--Collateral
Used in Biogas Projects Formerly Owned by O'Brien). Meridian
Bank, as the holder of Allowed Class 9 Claim that is secured by a
Lien on equipment that is leased to the owners of Biogas projects
formerly owned by O'Brien, will receive the
Reinstatement/Nonimpairment Treatment.
4.4 Class 10 (PECO Energy Company). PECO Energy
Company, as the holder of the Allowed Class 10 Claim, will
receive the Reinstatement/Nonimpairment Treatment.
4.5 Class 13 (Natwest). Natwest, as the holder of
Allowed Claims in Class 13A and 13B, will receive the
Reinstatement/Nonimpairment Treatment.
Article V: Treatment of Classes Impaired by the Plan
Classes that are or may be impaired by the Plan shall
be treated as follows:
5.1 Class 2 (CoreStates New Jersey National Bank).
The Allowed Secured Claims in Class 2 will receive, on the
Effective Date, the Cash Payoff Treatment in the amount of
$455,000, plus the applicable Non-Reinstated Secured Claim
Supplemental Payment, and, when and as provided in Section 6.11,
its Pro Rata Share of the Post-Petition Interest Fund; provided
that, in the event the holder of such Claims objects to any
provision of the Plan or votes such Claims or the General
Unsecured Claim in respect of the Deficiency Amount of such
Claims against the Plan, at the election of the Proponents made
in a written notice served and filed with the Court no later than
twenty days prior to commencement of the Confirmation Hearing
(the "Treatment Election Notice"), such holder will receive the
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Collateral Putback Treatment in respect of such holder's Allowed
Secured Claims, as and to the extent specified in the Treatment
Election Notice.
5.2 Class 3 (CoreStates Bank). The Allowed Secured
Claims in Class 3 will receive, on the Effective Date, the Cash
Payoff Treatment in the amount of $495,000, plus the applicable
Non-Reinstated Secured Claim Supplemental Payment, and, when and
as provided in Section 6.11, its Pro Rata Share of the Post-
Petition Interest Fund; provided that, in the event the holder of
such Claims objects to any provision of the Plan or votes the
General Unsecured Claim in respect of the Deficiency Amount of
its Secured Claims against the Plan, at the election of the
Proponents made in a Treatment Election Notice no later than
twenty days prior to commencement of the Confirmation Hearing,
such holder will receive the Collateral Putback Treatment in
respect of such holder's Allowed Secured Claims, as and to the
extent specified in the Treatment Election Notice.
5.3 Class 4 (Financing for Science International,
Inc.). The Allowed Secured Claims in Class 4 will receive, on
the Effective Date, the Biogas Claim Reinstatement Treatment, and
the obligations of the Debtor to Financing for Science
International, Inc. that are treated in Class 4 and are to be
assumed by the Acquired Subsidiary to which the Biogas Assets
that secure such obligations are transferred shall be
unconditionally guaranteed by NRG.
5.4 Class 5 (First Fidelity Bank). The Allowed
Secured Claims in Class 5 will receive, on the Effective Date,
the Cash Payoff Treatment in the amount of $155,588, plus the
applicable Non-Reinstated Secured Claim Supplemental Payment,
and, when and as provided in Section 6.11, its Pro Rata Share of
the Post-Petition Interest Fund; provided that, in the event the
holder of such Claims objects to any provision of the Plan or
votes the General Unsecured Claim in respect of the Deficiency
Amount of its Secured Claims against the Plan, at the election of
the Proponents made in a Treatment Election Notice no later than
twenty days prior to commencement of the Confirmation Hearing,
such holder will receive the Collateral Putback Treatment in
respect of such holder's Allowed Secured Claims, as and to the
extent specified in the Treatment Election Notice.
5.5 Class 7 (Heller Financial, Inc.). The Allowed
Secured Claims in Class 7 will receive, on the Effective Date,
the Cash Payoff Treatment in the amount of $1,360,000, plus the
applicable Non-Reinstated Secured Claim Supplemental Payment,
and, when and as provided in Section 6.11, its Pro Rata Share of
the Post-Petition Interest Fund; provided that, in the event the
holder of such Claims objects to any provision of the Plan or
votes the General Unsecured Claim in respect of the Deficiency
Amount of its Secured Claims against the Plan, at the election of
the Proponents made in a Treatment Election Notice no later than
twenty days prior to commencement of the Confirmation Hearing,
such holder will receive the Collateral Putback Treatment in
respect of such holder's Allowed Secured Claims, as and to the
extent specified in the Treatment Election Notice.
5.6 Class 8 (MDFC Equipment Leasing Corp.). The
holder of the Allowed Secured Claims in Class 8 will receive, on
the Effective Date, in the case of the Retained Generator
Equipment, as defined in the Stipulation and Order entered into
on August 7, 1995, the treatment provided in such Stipulation and
Order and, in the case of each such Secured Claim that is secured
by any Biogas Assets, such Claim shall receive the Biogas Claim
Reinstatement Treatment.
5.7 Class 9 (Meridian Bank). The Allowed Secured
Claims in Class 9 (other than the subclass treated in Section
4.3) will receive, on the Effective Date, the Cash
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Payoff Treatment in the amount of $140,000, plus the applicable
Non-Reinstated Secured Claim Supplemental Payment, and, when and
as provided in Section 6.11, its Pro Rata Share of the Post-
Petition Interest Fund; provided that, in the event the holder of
such Claims objects to any provision of the Plan or votes the
General Unsecured Claim in respect of the Deficiency Amount of
its Secured Claims against the Plan, at the election of the
Proponents made in a Treatment Election Notice no later than
twenty days prior to commencement of the Confirmation Hearing,
such holder will receive the Collateral Putback Treatment in
respect of such holder's Allowed Secured Claims, as and to the
extent specified in the Treatment Election Notice.
5.8 Class 11 (Bank of New York--Equipment). The
Allowed Secured Claims in Class 11 will receive, on the Effective
Date, the Cash Payoff Treatment in the amount of $1,106,000, plus
the applicable Non-Reinstated Secured Claim Supplemental Payment,
and, when and as provided in Section 6.11, its Pro Rata Share of
the Post-Petition Interest Fund; provided that, in the event the
holder of such Claims objects to any provision of the Plan or
votes the General Unsecured Claim in respect of the Deficiency
Amount of its Secured Claims against the Plan, at the election of
the Proponents made in a Treatment Election Notice no later than
twenty days prior to commencement of the Confirmation Hearing,
such holder will receive the Collateral Putback Treatment in
respect of such holder's Allowed Secured Claims, as and to the
extent specified in the Treatment Election Notice.
5.9 Class 12 (The Bank of New York) Documents. The
holder of the Allowed Secured Claim in Class 12 will receive the
BONY Deferred Cash Payment Treatment.
5.10 Class 14 (Other Secured Claims). Each holder of
an Allowed Secured Claim in Class 14 will receive, on the
Effective Date, the Collateral Putback Treatment or such other
treatment as may satisfy the requirements of Bankruptcy Code
section 1129(b)(2)(A).
5.11 Class 15A (Senior Debt). Subject to Article VII,
each holder of an Allowed Class 15A Claim will receive its Pro
Rata Share of (i) on the applicable Distribution Date, the Class
15A Cash Payment Fund and the Class 15A Supplemental Payment, and
(ii) when and as provided in Section 6.11, the Post-Petition
Interest Fund.
5.12 Class 15B (Non-Subordinated Unsecured Claims).
Subject to Article VII, each holder of an Allowed Class 15B Claim
will receive its Pro Rata Share of (i) on the applicable
Distribution Date, the Class 15B Cash Payment Fund and the Class
15B Supplemental Payment, and (ii) when and as provided in
Section 6.11, the Post-Petition Interest Fund; provided that, in
lieu of receiving any distributions from the Class 15B Cash
Payment Fund or any portion of the Class 15B Supplemental Payment
in accordance with the foregoing (but not in lieu of any
distributions from the Post-Petition Interest Fund, which shall
not be affected by this proviso), Wexford and any Affiliate of
Wexford shall receive in respect of any Allowed Class 15B Claims
held by Wexford and each such Affiliate ("Wexford-Related Class
15B Claims") the following less favorable treatment to which
Wexford and each such Affiliate have agreed pursuant to
Bankruptcy Code section 1123(a)(4): Wexford and each such
Affiliate shall receive, (x) on the applicable Distribution Date,
the applicable Wexford-Related Class 15B Supplemental Payment and
(y) promptly after a final determination is made of the Present
Value of the distributions from the Class 15B Cash Payment Fund
that Wexford or such Affiliate would have received pursuant to
the foregoing provisions of this Section 5.12 had the amount in
the Class 15B Cash Payment Fund been increased by the Allowed
amount of the Wexford-Related Class 15B Claims and but for this
proviso (the
22
"Class 15B Distribution Amount"), shares of New O'Brien Preferred
Stock with a liquidation and redemption preference equal to the
Class 15B Distribution Amount. Notwithstanding anything to the
contrary in this Section 5.12, the holder of any General
Unsecured Claim in respect of a guarantee by the Debtor of an
obligation of any Affiliate that is an Allowed Claim on the
Effective Date shall not be treated as a Class 15 Claim and shall
instead receive the Reinstatement/Nonimpairment Treatment.
Notwithstanding anything in this Section 5.12 to the contrary,
any Allowed Claim that is held by any Subsidiary of the Debtor
shall not be treated as a Class 15 Claim and shall instead be
deemed to be released and discharged as of the Effective Date.
5.13 Class 15C (Old Subordinated Noteholder Claims).
Subject to Article VII, each holder of an Allowed Class 15C Claim
will receive its Pro Rata Share of (i) on the applicable
Distribution Date, the Class 15C Cash Payment Fund and the Class
15C Supplemental Payment, and (ii) when and as provided in
Section 6.11, the Post-Petition Interest Fund; provided that, in
lieu of receiving any distributions from the Class 15C Cash
Payment Fund in accordance with the foregoing (but not in lieu of
any distribution from the Post-Petition Interest Fund, which
shall not be affected by this proviso), Wexford and any Affiliate
of Wexford shall receive in respect of any Allowed Class 15C
Claims held by Wexford and each such Affiliate ("Wexford-Related
Class 15C Claims") the following less favorable treatment to
which Wexford and each such Affiliate have agreed pursuant to
Bankruptcy Code section 1123(a)(4): Wexford and each such
Affiliate shall receive (x) on the applicable Distribution Date,
the applicable Wexford-Related Class 15C Supplemental Payment and
(y) promptly after a final determination is made of the Present
Value of the distributions from the Class 15C Cash Payment Fund
that Wexford or such Affiliate would have received pursuant to
the foregoing provisions of this Section 5.13 had the amount in
the Class 15C Cash Payment Fund been increased by the Allowed
amount of the Wexford-Related Class 15C Claims and but for this
proviso (the "Class 15C Distribution Amount"), shares of New
O'Brien Preferred Stock with a liquidation and redemption
preference equal to the Class 15C Distribution Amount.
5.14 Class 16 (Old Common Stock). On the Effective
Date, the Old Common Stock shall be canceled and extinguished,
and on the Distribution Date each holder of an Allowed Class 16
Interest on the Distribution Record Date will receive its Pro
Rata Share of the Equityholders Cash Payment and all of the New
O'Brien Common Stock to be issued and outstanding on and after
the Effective Date other than the Purchased Company Shares.
5.15 Class 17 (Old Subordinated Noteholder Securities
Claims). If the holders of Class 17 Claims accept the Plan by
the requisite majorities under Bankruptcy Code section 1126(c),
such holders shall retain, and shall be entitled to assert
following the Effective Date, their Class 17 Claims against
O'Brien to the extent of any recoveries available to O'Brien in
respect of any insurance policies providing any insurance
coverage in respect of such Claims; provided that the holders of
Class 17 Claims shall be entitled to no other distribution under
the Plan in respect of such Claims and such Claims shall
otherwise be discharged on the Effective Date. If the holders of
Class 17 Claims do not accept the Plan by the requisite
majorities under Bankruptcy Code section 1126(c), (i) the
Proponents, prior to or at the Confirmation Hearing, shall seek
the estimation of such Claims under Bankruptcy Code section
502(c) for allowance purposes at zero, and (ii) the holders of
such Claims shall receive no distributions whatsoever on account
of such Claims.
5.16 Class 18 (Old Stockholder Securities Claims). If
the holders of Class 18 Claims accept the Plan by the requisite
majorities under Bankruptcy Code section 1126(c),
23
such holders shall retain, and shall be entitled to assert,
following the Effective Date, their Class 18 Claims against
O'Brien to the extent of any recoveries available to O'Brien in
respect of any insurance policies providing any insurance
coverage in respect of such Claims; provided that the holders of
Class 18 Claims shall be entitled to no other distribution under
the Plan in respect of such Claims and such Claims shall
otherwise be discharged on the Effective Date. If the holders of
Class 18 Claims do not accept the Plan by the requisite
majorities under Bankruptcy Code section 1126(c), (i) the
Proponents, prior to or at the Confirmation Hearing, shall seek
the estimation of such Claims under Bankruptcy Code section
502(c) for allowance purposes at zero, and (ii) the holders of
such Claims shall receive no distributions whatsoever on account
of such Claims.
5.17 Class 19 (Old Options). On the Effective Date,
all Old Options shall be canceled and extinguished, and each
holder of an Allowed Class 19 Interest shall receive no
distributions on account of its Interest.
Article VI: Means for Execution of Plan
6.1 Consummation of Acquisition and Plan. Promptly
following the Confirmation Date, O'Brien shall execute and
deliver the Acquisition Agreement and O'Brien shall execute and
deliver each of the other Transaction Documents to which O'Brien
is to be a party pursuant to the Acquisition Agreement. Pursuant
to the Acquisition Agreement and the Plan, on the Effective Date,
the Plan shall be implemented and the following shall take place:
(a) Acquisition Agreement Closing. The Closing shall
occur under the Acquisition Agreement and in connection
therewith NRG shall pay or cause to be paid to Reorganized
O'Brien the Cash Purchase Price, and NRG or an Affiliate
thereof designated by NRG shall acquire the Purchased
Company Shares and the Purchased Subsidiary Shares free and
clear of all Liens, Claims and Interests and Reorganized
O'Brien shall issue to the Stock Transfer Agent for the
benefit of holders of Allowed Class 16 Interests, a
certificate representing the aggregate amount of shares of
New O'Brien Common Stock to which such holders are entitled
pursuant to Section 5.14;
(b) Cancellation of Old Common Stock. All Interests
in O'Brien shall be canceled and extinguished and all
certificates therefor shall be null and void, by operation
of the Plan and without the need for any action to be taken
by the certificate holder or by any other person;
(c) Distributions. The distributions, including the
Equityholders Cash Payment, to be made pursuant to Articles
II, IV and V on the Effective Date, shall be made or
provided for and the Distribution Reserves shall be created,
and held and administered by, Reorganized O'Brien in
accordance with Section 10.7;
(d) NRG New Loan; Creation of Cash Payment Fund. (1)
Reorganized O'Brien and NRG shall enter into the NRG New
Loan Agreement, (2) NRG New Loan Expenses of up to $100,000
will be paid from the proceeds of the NRG New Loan, (3) the
General Unsecured Claims Payment Amount shall be deposited
in the Cash Payment Fund, and (4) to the extent applicable,
any amount held in the Cash Payment Fund in excess of the
Required Unsecured Claims Payment Amount shall be withdrawn
therefrom and deposited in the Post-Petition Interest Fund;
24
(e) Additional Loan. If and to the extent required to
be made pursuant to the Acquisition Agreement or the Plan,
NRG shall make the NRG Mandatory Supplemental Loan; and
(f) Parlin Contributions. Reorganized O'Brien shall
make any O'Brien Parlin Reserve Contribution and the O'Brien
Parlin Paydown Contribution.
6.2 General Corporate Matters: Charter Amendment.
Reorganized O'Brien shall take such action as is necessary under
the laws of the state of Delaware, federal law and other
applicable law to effect the terms and provisions of the Plan.
On the Effective Date, Reorganized O'Brien shall file the New
Certificate of Incorporation and the New Certificate of
Designation with the Secretary of State of the State of Delaware
in accordance with sections 102 and 103 of Delaware General
Corporation Law and the New By-laws shall be adopted.
6.3 Reconstituted Board of Directors of O'Brien.
Effective on the Effective Date, the Board of Directors of
Reorganized O'Brien shall consist of seven directors, of whom (i)
four shall have been designated by NRG, (ii) one shall have been
designated by Wexford, (iii) one shall have been designated by
the Equity Committee and (iv) one shall have been jointly
designated by Wexford and each of the holders of Old Common Stock
who are members of the Equity Committee.
6.4 Corporate Action. Except as specifically provided
in the Plan, the adoption of the New Certificate of Incorporation
and New By-laws, the designation of directors for Reorganized
O'Brien, the distribution of Cash and the adoption, execution and
delivery of all contracts, instruments, indentures and other
agreements related to any of the foregoing, including without
limitation the Plan Documents, and the other matters provided for
under the Plan involving corporate action to be taken by or
required of the Debtor shall be deemed to have occurred and be
effective as provided herein, and shall be authorized and
approved in all respects, which authorization and approval shall
be effective upon entry of the Confirmation Order, without any
requirement of further action by stockholders or directors of the
Debtor or Reorganized O'Brien.
6.5 Other Transaction Documents. On the Effective
Date and as contemplated by the Acquisition Agreement, (i) NRG
and Reorganized O'Brien shall enter into the Co-Investment
Agreement; (ii) NRG (or one or more of its Affiliates) and
Reorganized O'Brien shall enter into the Management Agreement;
(iii) Reorganized O'Brien and Wexford (or an Affiliate thereof)
shall enter into the Liquidating Asset Management Agreement; (iv)
if the Newark Project Refinancing will occur on the Effective
Date, Newark Cogen and the lender that is providing the Newark
Project Refinancing shall enter into the loan documentation
relating thereto; and (v) if the NRG Newark Cogen Loan is
required to be made pursuant to the terms hereof and the
Acquisition Agreement, NRG and Reorganized O'Brien shall enter
into the NRG Newark Cogen Loan Documentation.
6.6 Distributions.
(a) Generally. All distributions required to be made
by Reorganized O'Brien hereunder to holders of Allowed Claims and
Allowed Interests shall be made by Reorganized O'Brien (except
for the Equityholders Cash Payment, which shall be made by NRG,
an affiliate of NRG or Reorganized O'Brien in such manner as
agreed by counsel to the Equity Committee and NRG prior to the
Effective Date), provided that (i) in the case of the holders of
Old Subordinated Noteholder Claims, Reorganized O'Brien shall
make the
25
distributions to which such holders are entitled to the relevant
Old Indenture Trustee, which, in turn, shall make such
distributions to the holders of Old Subordinated Noteholder
Claims entitled thereto in accordance with the applicable Old
Indenture (for which service the Old Indenture Trustees shall
receive their customary compensation), subject to any rights,
claims or liens of each Old Indenture Trustee under its Old
Indenture, to satisfy, without need for any further application
to or approval of the Court, its Claims, to the extent not
satisfied from any other source such as distributions under the
Plan, for reasonable compensation and reimbursement of reasonable
expenses and advances incurred or made by it, including
reasonable compensation, disbursements and expenses of the agents
of and legal counsel to such Old Indenture Trustee; and (ii) in
the case of the holders of Old Common Stock, the distributions of
New Common Stock and the Equityholders Cash Payment to which such
holders are entitled shall be made by the transfer agent for the
Old Common Stock or such other transfer or exchange agent as the
Proponents may designate prior to the Effective Date (the "Stock
Transfer Agent"), for which service the Stock Transfer Agent
shall receive its customary compensation from Reorganized
O'Brien.
(b) Distributions Made as of Distribution Record Date.
Only holders of record as of the Distribution Record Date shall
be entitled to receive the distributions provided under the Plan
in respect of Old Public Claims and Interests. As of the
Distribution Record Date, the respective transfer ledgers in
respect of the Old Subordinated Notes and Old Common Stock shall
be closed. Reorganized O'Brien and its agents shall have no
obligation to recognize any transfer of Old Subordinated Notes
and Old Common Stock occurring after the Distribution Record
Date. Reorganized O'Brien and its agents shall be entitled
instead to recognize and, for purposes of making distributions
under the Plan, deal only with those holders of record stated on
the transfer ledgers maintained by the respective Registrar (as
defined in the applicable Old Indenture) for the Old Subordinated
Notes or by the Stock Transfer Agent as of the Distribution
Record Date.
(c) Procedures for Distributions.
(i)On the Distribution Date, certificates representing
the New O'Brien Common Stock shall be issued in accordance
with the applicable terms of the Plan. As soon as
practicable, Reorganized O'Brien shall deliver a jumbo
certificate to the Stock Transfer Agent, which shall deliver
certificates to the holders of Old Common Stock that have
validly surrendered the certificates representing such Old
Common Stock (or other appropriate evidence of ownership if
the Old Common Stock held by such holders is in book entry
form).
(ii)As a condition to receiving distributions provided
for by the Plan in respect of the Old Public Claims and
Interests, any holder of an Allowed Claim or Interest that
is included in the Old Public Claims and Interests shall be
required to surrender the instrument or certificate
evidencing such Allowed Claim or Interest, accompanied by
duly executed and completed letters of transmittal in
appropriate form (or other appropriate evidence of ownership
if the Old Public Claims and Interests held by such holder
are in book entry form), to Reorganized O'Brien.
Distributions shall be made only to holders of Old
Subordinated Notes and Old Common Stock that have
surrendered such instruments or certificates (or, in the
case of book entry securities, other appropriate evidence of
ownership) as herein provided. Except as provided in
Section 6.6(c)(iii), no distribution shall be made to any
holder of an Old Subordinated Note or Old Common Stock that
has not so surrendered such instruments or certificates held
by it (or, in the case of book entry securities, provided
other appropriate evidence of ownership).
26
(iii)Unless waived by Reorganized O'Brien, any holder
of an Allowed Claim or Interest that is included in the Old
Public Claims and Interests and that is based upon an
instrument or certificate which has been lost, stolen,
mutilated or destroyed shall, in lieu of surrendering such
instrument or certificate as provided in this section,
deliver to Reorganized O'Brien (i) evidence satisfactory to
Reorganized O'Brien of the loss, theft, mutilation or
destruction of such instrument and (ii) such security or
indemnity as may be reasonably required by Reorganized
O'Brien to hold Reorganized O'Brien harmless from any
damages, liabilities, or costs incurred in treating such
Entity as a holder of such instrument or certificate.
Thereafter, such Entity shall be treated as the holder of
the instrument or certificate for all purposes of the Plan
and shall, for all purposes under the Plan, be deemed to
have surrendered the instrument or certificate representing
such Old Public Claims or Interests.
(iv)Any holder of an Allowed Claim or Interest that is
included in the Old Public Claims or Interests who shall not
have surrendered or be deemed to have surrendered the
instruments or certificates representing such Allowed Claim
or Interest (or, in the case of book entry securities, other
appropriate evidence of ownership) within twenty-four (24)
months after the Effective Date shall have such Claim or
Interest disallowed, shall receive no distributions on such
Claim or Interest under the Plan and shall be forever barred
from asserting any Claim or Interest. All such certificates
representing shares of New O'Brien Common Stock
distributable to holders of Old Common Stock shall be
redistributed as soon as practicable after the end of the
twenty-fourth month after the Effective Date to the other
holders of Old Common Stock as of the Distribution Record
Date who previously surrendered their certificates.
(d) Calculation of Distribution Amounts of Securities.
No fractional shares of New O'Brien Common Stock shall be issued
or distributed. Fractional shares of New O'Brien Common Stock
shall be rounded to the next greater or lesser whole number as
follows: (a) fractions of greater than 0.5 shall be rounded up to
the next greater whole number and (b) fractions of 0.5 or less
shall be rounded down to the next lesser whole number; provided
that in no event shall there be issued to holders of Allowed
Class 16 Interests under the Plan an aggregate number of shares
that is less than a total of 58.14% of the issued and outstanding
shares of New O'Brien Common Stock to be issued on and after the
Effective Date.
(e) Delivery of Distributions. Subject to Bankruptcy
Rule 9010, distributions to holders of Allowed Claims and
Interests shall be mailed or otherwise delivered to the address
of each such holder as set forth on the Schedules filed with the
Court unless superseded by the address as set forth on the proofs
of Claim or proofs of Interest filed by such holders (or at the
last known addresses of such a holder if no proof of Claim or
proof of Interest is filed or if O'Brien has been notified in
writing of a change of address). If any holder's distribution is
returned as undeliverable, no further distributions to such
holder shall be made unless and until Reorganized O'Brien is
notified of such holder's then current address, at which time all
missed distributions shall be made to such holder without
interest. Amounts in respect of undeliverable distributions
shall be held by Reorganized O'Brien until such distributions are
claimed. All Claims for undeliverable distributions shall be
made on or before the later of the second anniversary of the
Effective Date and, in the case of holders of Disputed Claims
that have not been Allowed, disallowed or withdrawn at such time,
the date ninety (90) days after such Claim is Allowed, disallowed
or withdrawn. After such date, all unclaimed property shall be
the property of and released to Reorganized O'Brien and the claim
of any holder with respect to such property shall be discharged
and forever barred.
27
(f) Time Bar to Cash Payments. Checks issued by
Reorganized O'Brien in respect of Allowed Claims shall be null
and void if not negotiated within six (6) months after the date
of issuance thereof. Requests for reissuance of any check shall
be made directly to Reorganized O'Brien by the holder of the
Allowed Claim with respect to which such check originally was
issued. Any claim in respect of such a voided check shall be
made on or before the later of the second anniversary of the
Effective Date and ninety (90) days after the six-month period
following the date of issuance of such check. After such date,
all claims in respect of void checks shall be discharged and
forever barred.
(g) Cancellation of Old Indentures. Subject to
Sections 6.6(a) and 14.8, the Old Indentures and the respective
obligations of the Old Indenture Trustees thereunder shall be
canceled and discharged on the Effective Date and deemed null and
void and of no further force or effect thereafter, provided that
such cancellation shall not impair the rights of the Old
Indenture Trustees to compensation or reimbursement or their duty
to make distributions pursuant to the Plan.
6.7 Distribution Dates. Any distribution required to
be made under the Plan on a particular date shall be made on such
date or as soon as practicable thereafter.
6.8 Vesting of Property. Except as otherwise provided
in the Plan or the Confirmation Order, upon the Effective Date
all property of O'Brien's Estate, wherever situated, shall vest
in Reorganized O'Brien and shall be retained by Reorganized
O'Brien or transferred or distributed as provided in the Plan.
Upon the Effective Date, all property of the Estate, whether
retained by Reorganized O'Brien or transferred or distributed,
shall be free and clear of all Claims, Liens, and Interests,
except the Claims, Liens, and Interests of Creditors expressly
provided for in the Plan.
6.9 Consummation. Substantial consummation of the
Plan, within the meaning of Bankruptcy Code section 1101(2),
shall occur on the Effective Date.
6.10 NRG Supplemental Loan. If and to the extent that
the Cash Payment Fund is not or may not be sufficient to provide
for the payment, in full, of the Allowed amount of all Class 15
Claims or that funds required to make payments contemplated to be
made to the holders of Allowed Claims under the Plan, as it may
be amended from time to time, otherwise would not or may not be
available (a "Plan Cash Insufficiency"), NRG, in its sole
discretion, may make a loan (the "NRG Discretionary Supplemental
Loan") to Reorganized O'Brien on the Effective Date in an amount
to be determined by NRG in its sole discretion up to the amount
of the Plan Cash Insufficiency. Subject to Section 10.8(b), to
the extent that (i) the Administrative and Cure Claims Cash
Payment exceeds the sum of the Additional Cash Amount (if any),
any Excess Cash available to be applied pursuant to Section
6.12(c) and the Reserved Administrative and Cure Claims Cash
Amount, or (ii) the aggregate amount of proceeds of Designated
Receivables received by O'Brien or any of its Subsidiaries after
November 17, 1995 but before the Effective Date that is available
for distribution by Reorganized O'Brien on the Effective Date is
less than $2.24 million, NRG shall make a loan (the "NRG
Mandatory Supplemental Loan") to Reorganized O'Brien on the
Effective Date equal to the sum of (x) the amount by which the
Administrative and Cure Claims Cash Payment exceeds the sum of
the Additional Cash Amount (if any), any Excess Cash available to
be applied pursuant to Section 6.12(c) and Reserved
Administrative and Cure Claims Cash Amount, and (y) the amount by
which $2.24 million exceeds the aggregate amount received by
O'Brien or any of its Subsidiaries after November 17, 1995 but
before the Effective Date in respect of the Designated
Receivables that is available for distribution by Reorganized
O'Brien on the Effective Date. The NRG Supplemental Loan shall
be subordinate to the NRG New
28
Loan and shall be made pursuant to the NRG Supplemental Loan
Documentation. NRG shall be granted a security interest in any
Designated Receivables existing on the Effective Date to secure
repayment of the NRG Mandatory Supplemental Loan, and any
payments received by Reorganized O'Brien after the Effective Date
in respect of such Designated Receivables shall be applied,
first, to pay down the NRG Mandatory Supplemental Loan then
outstanding.
6.11 Post-Petition Interest Fund. Each holder of an
Allowed Non-Reinstated Secured Claim and each holder of an
Allowed General Unsecured Claim in Class 15A, 15B or 15C will
receive its Pro Rata Share of the Post-Petition Interest Fund on
the Final Resolution Date (such Pro Rata Share to be determined
as if each holder of an Allowed Non-Reinstated Secured Claim and
the holders of General Unsecured Claims are entitled to receive
such distribution, whether or not any such class forfeits its
entitlement to such distribution provisions as provided below in
this Section 6.11); provided that, if (i) any holder of an
Allowed Non-Reinstated Claim fails to accept the Plan or objects
to any provision of the Plan at the time of the Confirmation
Hearing, (ii) the Class 15A Claims held by the holders of the
Secured Claims in Classes 2, 3, 5, 7, 9 and 11 in respect of the
Deficiency Amount of such Secured Claims fail to accept the Plan
or (iii) any of Class 15B or 15C fails to accept the Plan by the
requisite majorities in accordance with Bankruptcy Code section
1126(c), the amount of the distribution from the Post-Petition
Interest Fund to which any such holder or the holders in any such
non-accepting 15B or 15C Class (or, in the case of Class 15A,
such Class containing holders that so fail to accept the Plan)
shall be entitled to receive under the Plan, at the Proponents'
option, shall be reduced or eliminated to the extent that
distributions from the Post-Petition Interest Fund are not
required to be made in order for the Plan to be confirmable.
6.12 Deferral of DIP Loan and Wexford Administrative
Claim. (a) The DIP Loan Outstanding Amount shall be deferred and
shall not be repaid on the Effective Date (the "Deferred DIP Loan
Amount") except to the extent that Excess Cash remains available
to repay the DIP Loan Outstanding Amount and the Wexford
Administrative Claim after repaying the NRG Mandatory
Supplemental Loan, to the extent of any such Loan made to cover
the amounts specified in clause (y) of Section 6.10. To the
extent such Excess Cash is available to repay less than the full
amount of the DIP Loan Outstanding Amount and the Wexford
Administrative Claim, the amount so available shall be applied to
repay the DIP Loan Outstanding Amount and the Wexford
Administrative Claim on a proportional basis. Subject to the
provisions of Section 6.12(c) with regard to the application of
Excess Cash, the Deferred DIP Loan Amount shall be repaid on a
proportional basis (together with the Deferred Wexford Claim
Amount) when and as the New O'Brien Preferred Stock is required
or permitted to be redeemed pursuant to the New Certificate of
Designation or Section 6.12(c).
(b) The Wexford Administrative Claim shall be deferred
and shall not be paid on the Effective Date (the "Deferred
Wexford Claim Amount") except to the extent that Excess Cash
remains available to repay the Wexford Administrative Claim and
the DIP Loan Outstanding Amount after repaying the NRG Mandatory
Supplemental Loan, to the extent of any such Loan made to cover
the amounts specified in clause (y) of Section 6.10. To the
extent such Excess Cash is available to repay less than the full
amount of the Wexford Administrative Claim and the DIP Loan
Outstanding Amount, the amount so available shall be applied to
repay the DIP Loan Outstanding Amount and the Wexford
Administrative Claim on a proportional basis. Subject to the
provisions of Section 6.12(c) with regard to the application of
Excess Cash, the Wexford Administrative Claim shall be paid on a
proportional basis (together with the Deferred DIP Loan Amount)
when and as the New O'Brien Preferred Stock issued to Wexford or
any of its Affiliates in respect of the Wexford-Related Unsecured
29
Claims is required or permitted to be redeemed pursuant to the
New Certificate of Designation or Section 6.12(c).
(c) If, after setting aside the Administrative and
Cure Claims Cash Payment, the aggregate amount of cash payments
to be made to the holders of Allowed Secured Claims receiving the
Cash Payoff Treatment under the Plan, the amount of the O'Brien
Parlin Reserve Contribution, the O'Brien Parlin Paydown
Contribution, the NRG New Loan Expenses, the Retained Working
Capital Amount, the General Unsecured Claims Cash Payment, the
Supplemental Interest Amount, and the Equityholders Cash Payment
and there remains available and unapplied any portion of the Cash
Purchase Price or Reorganized O'Brien otherwise then holds any
other available cash, or funds are released from the
Administrative and Priority Claims Reserve pursuant to Section
10.8, any such portion of the Cash Purchase Price, other
available cash and funds so released from the Administrative and
Priority Claims Reserve (collectively, "Excess Cash") shall be
applied as provided in this Section 6.12(c). All Excess Cash
shall be used, first, to fund the difference, if any, between the
Administrative and Cure Claims Cash Payment and the sum of the
Additional Cash Amount (if any) and the Reserved Administrative
and Cure Claims Cash Amount, second, to repay the NRG Mandatory
Supplemental Loan, and third, to repay NRG the then outstanding
amount owing in respect of the DIP Loan and pay Wexford the
remaining unpaid portion of the Wexford Administrative Claim,
which shall be on a proportional basis in the event the remaining
Excess Cash is not sufficient to pay the full amount outstanding
in respect of the DIP Loan and the portion of the Wexford
Administrative Claim remaining unpaid. If the remaining Excess
Cash is sufficient to pay in full the then outstanding amount of
the DIP Loan and any unpaid portion of the Wexford Administrative
Claim, any amounts of Excess Cash available after paying in full
such amounts will be applied in redemption of the New O'Brien
Preferred Stock distributed under the Plan.
Article VII: Cramdown
If any impaired class of Claims or Interests shall fail
to accept the Plan with the requisite majorities in accordance
with Bankruptcy Code section 1126(c), the Proponents reserve the
right to request that the Court determine that the Plan is fair
and equitable as to, and does not discriminate against, each such
Class and confirm the Plan in accordance with Bankruptcy Code
section 1129(b). The Proponents hereby request the Court to
determine that the Plan is fair and equitable as to, and does not
unfairly discriminate against, Class 19 in accordance with
Bankruptcy Code section 1129(b). If any holder of a Secured
Claim in Class 2, 3, 5, 7, 9 (other than the subclass treated in
Class 4.3) or 11 fails to accept the Plan or any of 15B or 15C
fails to accept the Plan by the requisite majorities in
accordance with Bankruptcy Code section 1126(c), (i) any such
holder of a Secured Claim shall receive the Collateral Putback
Treatment if and to the extent provided in any Treatment Election
Notice which may be given to such holder and (ii) at the
Proponents' option, the distributions from the Post-Petition
Interest Fund which the holders in any such non-accepting Class
are entitled to receive under Sections 5.1, 5.2, 5.4, 5.5, 5.7,
5.8, 5.12 or 5.13, as applicable, shall be reduced or eliminated
to the extent provided, in the case of distributions from the
Post-Petition Interest Fund, in Section 6.11. If the Class 15A
Claims held by the holders of the Secured Claims in Classes 2, 3,
5, 7 and 11 in respect of the Deficiency Amount of such Secured
Claims fail to accept the Plan, the distributions from the Post-
Petition Interest Fund which the holders in Class 15A are
entitled to receive under Section 5.1, at the Proponents' option,
shall be reduced or eliminated to the extent provided in Section
6.11.
30
Article VIII: Executory Contracts
8.1 Rejection of Executory Contracts. Pursuant to the
Plan and Bankruptcy Code sections 365 and 1123(b)(2), each
executory contract or unexpired lease to which O'Brien is a party
that is listed on Schedule 8.1 hereto, and any Old Options, to
the extent that such Old Options constitute executory contracts
under Bankruptcy Code section 365 (the "Rejected Contracts")
shall be rejected, effective on the Effective Date. Any Claim
for damages arising from rejection of any Rejected Contract
pursuant to the Plan shall be forever barred unless a proof of
claim therefor in proper form is filed with the Court no later
than twenty days after notice of the Confirmation Date is given
to the non-debtor party to such Rejected Contract or such earlier
date as may be set forth in an order of the Bankruptcy Court.
8.2 Assumption of Executory Contracts. Pursuant to
sections 365 and 1123(b)(2) of the Bankruptcy Code, all executory
contracts and unexpired leases to which the Debtor is a party
that are not Rejected Contracts (the "Assumed Contracts") shall
be assumed, effective on the Effective Date. All payments
required by Bankruptcy Code section 365(b)(1)(A) or (B) shall be
made by Reorganized O'Brien on the Effective Date or as soon
thereafter as is practicable in such amount as may be determined,
in each instance, by agreement between NRG and the non-debtor
party to the contract or, in the case of any dispute, by Final
Order of the Court.
Article IX: Rights and Obligations of
Reorganized O'Brien as Plan Administrator
9.1 Appointment of Plan Administrator. Because the
Proponents have jointly determined by written notice filed with
the Court prior to entry of the Confirmation Order that the
duties and responsibilities of plan administrator shall be
performed by Reorganized O'Brien rather than an appointed plan
administrator, all responsibilities of plan administration
provided for herein shall be performed by Reorganized O'Brien.
9.2 Exculpation. No holder of a Claim or an
Interest, or representative thereof, shall have or pursue any
claim or cause of action (1) against Reorganized O'Brien for
making distributions in accordance with the Plan, holding or
administering the Distribution Reserves in accordance with the
Plan or for implementing the provisions of the Plan, or (2)
against any holder of a Claim or Interest for receiving or
retaining payments or other distributions as provided for by the
Plan.
9.3 Powers of Reorganized O'Brien. Pursuant to the
terms and provisions of the Plan and the Confirmation Order,
Reorganized O'Brien shall be empowered to (a) make distributions
contemplated by the Plan, including without limitation by holding
and administering the Distribution Reserves; (b) file and
prosecute objections to Disputed Claims (other than Disputed
Class 15 Claims); (c) employ, retain, or replace professionals to
represent it with respect to the fulfillment of its
responsibilities under the Plan and the Confirmation Order; and
(d) exercise such other powers as may be vested in Reorganized
O'Brien pursuant to an order of the Court or pursuant to the
Plan.
9.4 Duties of Reorganized O'Brien. Pursuant to and
subject to the terms and provisions of (and except as may
otherwise be provided in) the Plan, Reorganized O'Brien shall
have the duties of:
(a) carrying out the distribution provisions of the
Plan;
31
(b) managing property to be distributed in a manner
designed to effectuate the Plan; and
(c) complying with all tax withholding and reporting
requirements imposed on it by any governmental unit.
Article X: Procedures for Resolving and Treating
Disputed Claims
10.1 Objection Deadline. Unless otherwise provided by
order of the Court, no objections to Claims that are Allowed
Claims on the Effective Date shall be filed after the Effective
Date. No later than 60 days after the Effective Date, objections
to Claims that are Disputed Claims on the Effective Date shall be
filed with the Court and served upon the holders of each of the
Disputed Claims.
10.2 Responsibility For Objection to Disputed Claims.
(a) Reorganized O'Brien. Reorganized O'Brien shall be
responsible for objecting to the allowance of, settling and
litigating any Disputed Claims (other than Disputed Class 15
Claims) following the Effective Date on behalf of Reorganized
O'Brien, the entire cost of which, including any fees and
expenses of its counsel and other professionals, shall be borne
by Reorganized O'Brien. Nothing herein shall affect the right of
any other party in interest to file an objection to any Disputed
Claim. NRG shall have the right to object to the allowance of
any Administrative Claim. None of the Proponents shall object to
the allowance of the Wexford Administrative Claim.
(b) Creditors' Committee. Notwithstanding anything
herein to the contrary, following the Effective Date, the
Creditors' Committee shall be responsible for objecting to the
allowance of, settling and litigating any Disputed Class 15
Claims on behalf of Reorganized O'Brien, the entire cost of
which, including the fees and expenses of its counsel and other
professionals (collectively, the "Objection Resolution
Expenses"), shall be funded through and paid from the Cash
Payment Fund. In connection with the prosecution of objections
to Class 15 Claims, the Creditors' Committee shall have the
exclusive right to assert all defenses, offsets, recoupments and
counterclaims, including without limitation defenses under
Section 502(d) of the Bankruptcy Code that are based upon claims
or causes of action retained by the Reorganized Debtor under
Section 14.3 or otherwise as a defense to the allowance of any
Class 15 Claim; provided that any settlement of counterclaims
asserted by the Creditors' Committee on behalf of Reorganized
O'Brien in accordance with the foregoing shall require the
consent of Reorganized O'Brien, and any disputes between the
Creditors' Committee and Reorganized O'Brien with respect to the
assertion and settlement of such counterclaims shall be resolved
by the Bankruptcy Court. It is understood that the Creditors'
Committee is intended to have the benefit of any such
counterclaim up to the amount of the respective Disputed Class 15
Claim and that Reorganized O'Brien is intended to have the
benefit of any such counterclaim in excess of the amount of the
respective Disputed Class 15 Claim. The Creditors' Committee
shall not object to any Claim acquired by Wexford or any
Affiliate of Wexford prior to the commencement of the
Confirmation Hearing except on the basis that all or any portion
of any such Claim should be disallowed because the Debtor's
records do not reflect the claimed amount as due and owing.
Reorganized O'Brien shall reasonably cooperate with the
Creditors' Committee in the Creditors' Committee's prosecution of
objections to the allowance of Disputed Class 15 Claims,
including by providing access to relevant documentation that the
Creditors' Committee reasonably determines is necessary to
prosecute objections to Disputed Class 15 Claims. The Objection
Resolution Expenses shall be paid by Reorganized O'Brien solely
from the Cash Payment
32
Fund without the necessity of any approval by the Court or review
or other action by Reorganized O'Brien; provided that, at least
fifteen days prior to any payment being made by Reorganized
O'Brien in respect of any Objection Resolution Fees, the
Creditors' Committee shall file with the Court and serve a notice
(a "Fee Request Notice") setting forth the amount of Objection
Resolution Expenses requested to be paid and the period covered
thereby, and shall promptly provide to any of such parties who so
request a copy of a statement of services rendered setting forth
in appropriate detail a description of the services performed
during the period in question on the following parties: (i) each
holder of an Allowed Class 15A Claim, (ii) each holder of one of
the five largest Class 15B Claims, (iii) each Old Indenture
Trustee, (iv) Wexford and (v) Reorganized O'Brien; provided
further that, if any holder of a Class 15 Claim that has not then
been disallowed in full or withdrawn files with the Court and
serves on the Creditors' Committee and Reorganized O'Brien,
within ten days after the Creditors' Committee shall have filed
and served any Fee Request Notice in accordance with the
foregoing, an objection to the payment of any fees or expenses
that are the subject of such Fee Request Notice, Reorganized
O'Brien shall not make payment from the Cash Payment Fund the
amount as to which any such holder has so objected until such
objection is withdrawn or the Court shall have resolved the
objection. Reorganized O'Brien shall set aside in the Disputed
Claims Reserve such amount as the Creditors' Committee may
request to serve as a reserve for the payment of all Objection
Resolution Expenses projected to be incurred following the
Effective Date; provided that, promptly after the Final
Resolution Date, any remaining amount so reserved shall be
released and distributed to the holders of Allowed Class 15
Claims.
10.3 No Distributions Pending Allowance.
Notwithstanding any other provision of the Plan, no payments or
distributions shall be made with respect to a Disputed Claim
unless and until such Claim shall be Allowed by Final Order or
the time by which Reorganized O'Brien or the Creditors'
Committee, as applicable, is required to file an objection to
such Claim shall have passed without the timely filing of an
objection.
10.4 Distributions After Allowance. Payments and
distributions from Reorganized O'Brien to each holder of a
Disputed Claim, to the extent that it ultimately becomes an
Allowed Claim, shall be made in accordance with the provisions of
the Plan governing the Class of Claims to which the Disputed
Claim belongs. On the Distribution Date in respect of a Disputed
Claim that becomes an Allowed Claim after the Effective Date, any
Cash that would have been distributed in respect of the Disputed
Claim had it been an Allowed Claim at the Effective Date shall be
distributed, with interest thereon to the extent earned after the
Effective Date and before the Distribution Date, net of any taxes
paid pursuant to Section 10.9.
10.5 Treatment of Contingent Claims. Until such time
as a Contingent Claim becomes an Allowed Claim, such Claim shall
be treated as a Disputed Claim. In the case of the holder of a
Claim against the Debtor that has recourse against an Affiliate
of the Debtor or any collateral security provided by any
Affiliate of the Debtor, the Allowable amount of such claim shall
be estimated by the Court prior to or at the Confirmation Hearing
and shall be reduced by the present value, as determined by the
Court as of the Effective Date, of the amount or value that such
holder is expected to realize as a result of recourse to such
Affiliate or collateral security thereof.
10.6 Estimation of Claims. The Proponents may, prior
to the Confirmation Date, and Reorganized O'Brien may, at any
time thereafter, request that the Court estimate any Contingent
Claim pursuant to section 502(c) of the Bankruptcy Code. In the
event that the Court estimates any Contingent Claim, that
estimated amount will constitute either the
33
Allowed amount of such Claim or a maximum limitation on such
Claim, as determined by the Court. If the estimated amount
constitutes a maximum limitation on such Claim, Reorganized
O'Brien or the Creditors' Committee, as applicable, may elect to
pursue any supplemental proceedings to object to or estimate for
allowance purposes any ultimate payment on such Claim.
10.7 Disputed Claims Reserve.
(a) From and after the Effective Date, distributions
in respect of the Class 15 Supplemental Payment and from the Cash
Payment Fund and the Post-Petition Interest Fund shall be
reserved by Reorganized O'Brien for the holders of Disputed Class
15 Claims and deposited in segregated accounts to be held and
administered by Reorganized O'Brien (the "Disputed Claims
Reserve"). The distributions so deposited in the Disputed Claims
Reserve shall be held in trust by Reorganized O'Brien for the
benefit of the holders of Class 15 Claims. Except to the extent
the Court shall determine that a good and sufficient reserve for
Disputed Class 15 Claims is less than the full amount thereof, in
determining the amount of the distributions due to the holders of
Allowed Class 15 Claims and the amount to be reserved for
Disputed Class 15 Claims, the appropriate calculations shall be
made as if all Disputed Claims were allowed as of the Effective
Date in the full amount claimed by the holders thereof (which, in
the case of Contingent Claims, shall be such maximum amount as
may be estimated by the Court prior to or at the Confirmation
Hearing). In the case of Disputed Class 15 Claims covered by any
insurance policy under which the Debtor is the insured, the
Debtor shall not be required to reserve an amount in excess of
the respective Debtor's self-insured retention liability in
respect of such Claim.
(b) In the case of a Claim that is asserted as an
Administrative Claim or Priority Claim but which Reorganized
O'Brien believes constitutes, in whole or in part, a General
Unsecured Claim, Reorganized O'Brien shall not be required to
reserve within the Disputed Claims Reserve for Disputed Class 15
Claims the amount of Cash that would have been distributable on
the Effective Date if such Claim then constituted an Allowed
Class 15 Claim, provided such Claim is treated as an Unresolved
Administrative and Priority Claim and a reserve therefor is
accordingly included in the Administrative and Priority Claims
Reserve.
(c) All cash held in the Disputed Claims Reserve shall
be invested in such investments as permitted under section 345 of
the Bankruptcy Code. All interest earned on such investments
shall be held in trust in the Disputed Claims Reserve and shall
be distributed only in the manner set forth below in this Section
10.7.
(d) To the extent that a Disputed Class 15 Claim is
Allowed after the Effective Date, the amount of Cash which the
holder of such Claim theretofore would have been entitled to
receive if such Claim had been an Allowed Class 15 Claim on the
Effective Date, together with interest earned on such Cash (net
of any taxes paid pursuant to Section 10.9), shall be released
from the Disputed Claims Reserve and distributed to such holder.
(e) If and to the extent the holders of Allowed Class
15 Claims shall not, and upon receipt of such distributions will
not, have received distributions under the Plan from the Cash
Payment Fund equal to the Required Unsecured Claims Payment
Amount, at the end of each calendar quarter following the
Effective Date and on the Final Resolution Date, Reorganized
O'Brien will distribute any amounts reserved from the Cash
Payment Fund (and any interest earned thereon, net of any taxes
paid pursuant to Section 10.9) and held in the Disputed Claims
Reserve in respect of Disputed Class 15 Claims that have been
disallowed by Final Order or withdrawn after the Effective Date
or, if applicable, the end of the calendar
34
quarter following the Effective Date that immediately precedes
such calendar quarter to the then holders of Allowed Class 15
Claims based on their Pro Rata Share. At the end of each
calendar quarter following the Effective Date and on the Final
Resolution Date, Reorganized O'Brien will distribute any amounts
reserved in respect of the Class 15 Supplemental Payment (and any
interest earned thereon, net of any taxes paid pursuant to
Section 10.9) and held in the Disputed Claims Reserve in respect
of Disputed Class 15 Claims that have been disallowed by Final
Order or withdrawn after the Effective Date or, if applicable,
the end of the calendar quarter following the Effective Date that
immediately precedes such calendar quarter to the then holders of
Allowed Class 15 Claims (other than the Wexford-Related Unsecured
Claims) based on their Pro Rata Share. Following the
disallowance by Final Order or the withdrawal of any Disputed
Class 15 Claim after such time as the holders of Allowed Class 15
Claims shall have received distributions under the Plan from the
Cash Payment Fund equal to the Required Unsecured Claims Payment
Amount, Reorganized O'Brien will release the Cash held in the
Disputed Claims Reserve in respect of such Disputed Class 15
Claim (and any interest earned thereon, net of taxes paid
pursuant to Section 10.9) and deposit such amounts into the Post-
Petition Interest Fund. Promptly after all Disputed Class 15
Claims shall have been Allowed or disallowed by Final Order or
withdrawn after the Effective Date, Reorganized O'Brien shall
make a final recalculation of amounts reserved from the Cash
Payment Fund then held in the Disputed Claims Reserve and shall
distribute all such amounts (together with any interest earned
thereon net of taxes paid pursuant to Section 10.9) to the
holders of Allowed Class 15 Claims, to the extent such holders
shall not, and upon such distribution will not, have received
distributions under the Plan from the Cash Payment Fund equal to
the Required Unsecured Claims Payment Amount, and shall deposit
any remaining amounts into the Post-Petition Interest Fund.
Notwithstanding any provision to the contrary herein, interim
distributions from the Post-Petition Interest Fund may be made by
Reorganized O'Brien, if and to the extent requested by the
Creditors' Committee or ordered by the Court on motion of any
holder of an Allowed Class 15 Claim.
(f) Prior to the Effective Date, the Court shall
determine the maximum amount of Disputed Claims (including
Contingent Claims) to the extent necessary for Reorganized
O'Brien to calculate the amount of distributions to be held in
the Disputed Claims Reserve.
10.8 Administrative and Priority Claims Reserve.
(a) Subject to Section 10.8(b), the Administrative and
Priority Claims Reserve shall be established on the Effective
Date in an amount determined by the Court prior to the Effective
Date. The Administrative and Priority Claims Reserve shall serve
as the sole source of payment of all Unresolved Administrative
and Priority Claims that are determined by Final Order after the
Effective Date to be Allowed Claims, irrespective of the
aggregate amount at which the Unresolved Administrative and
Priority Claims ultimately are allowed by the Court. As
Unresolved Administrative and Priority Claims are determined by
Final Order to be Allowed Claims following the Effective Date,
the Allowed amount thereof or, in the case of Unresolved
Administrative and Priority Claims that ultimately are determined
to be Allowed Class 15 Claims, the amount distributable in
respect thereof in accordance with Section 10.7, to the extent
there are funds then remaining in the Administrative and Priority
Claims Reserve, shall be released from the Administrative and
Priority Claims Reserve and paid to the holder thereof. After
(i) the time shall have expired by which any holder of an
Administrative Claim or Priority Claim must file a proof of claim
or be forever barred, (ii) the Court shall have determined by
Final Order the Allowed amount of all Unresolved Administrative
and Priority Claims and (iii) the Allowed amount of all
Unresolved Administrative and Priority Claims shall have been
paid in full from the Administrative and Priority Claims Reserve,
any funds then remaining in the Administrative
35
and Priority Claims Reserve shall be released therefrom and
applied as Excess Cash as provided in Section 6.12(c)).
(b) Notwithstanding anything herein to the contrary,
if the Administrative and Cure Claims Cash Payment exceeds the
sum of the Additional Cash Amount (if any), any Excess Cash
available to be applied pursuant to Section 6.12(c) on the
Effective Date and the Reserved Administrative and Cure Claims
Cash Amount (the amount of such excess being referred to as an
"Administrative Claims Shortfall") and, therefore, NRG is
required to make an NRG Mandatory Supplemental Loan pursuant to
Section 6.10 in an amount equal to the Administrative Claims
Shortfall (an "Administrative Shortfall Loan"), the time at which
all or a portion of the Administrative Shortfall Loan shall be
required to be made shall be deferred until after the Effective
Date, as follows: (i) the amount of the Administrative Shortfall
Loan required to be made on the Effective Date shall equal the
amount by which the Effective Date Administrative and Cure
Payments exceeds the sum of the Additional Cash Amount (if any),
any Excess Cash available to be applied pursuant to Section
6.12(c) on the Effective Date and the Reserved Administrative and
Cure Claims Cash Amount (the amount of such excess being referred
to as the "Effective Date Administrative Shortfall Loan," with
the amount of the Administrative Shortfall Loan in excess of the
Effective Date Administrative Shortfall Loan (the amount of such
excess being referred to as the "Deferred Administrative
Shortfall Amount") being deferred and potentially reduced as
provided below in clause (ii) of this Section 10.8(b), and
(ii) at such time or times as Unresolved Administrative and
Priority Claims become Allowed by Final Order after the Effective
Date (or in the case of such Claims that are Allowed, but not yet
due and payable on the Effective Date, at such times as such
Claims become due and payable after the Effective Date), and
provided that NRG shall not theretofore have made deferred
Administrative Shortfall Loans pursuant hereto in excess of the
Deferred Administrative Shortfall Amount, NRG shall be required
within 3 business days thereafter to make an advance to
Reorganized O'Brien in respect of the Administrative Shortfall
Loan pursuant to the NRG Supplemental Loan Documentation equal to
the amount at which such Unresolved Administrative and Priority
Claims have been so Allowed or become due and payable (less any
amount then available in the Administrative and Priority Claims
Reserve to pay such Claims), subject to the maximum amount
thereof established by the Court prior to the Effective Date in
connection with the fixing of the amount of the Administrative
and Priority Claims Reserve. Any such advance, when received by
Reorganized O'Brien, shall be promptly deposited in the
Administrative and Priority Claims Reserve. Notwithstanding
anything herein to the contrary, NRG in any event shall be
required to make the Administrative Shortfall Loan on the
Effective Date to the extent necessary to fund the payment of all
Cure Payments and Administrative Claims and Priority Claims that
are Allowed and due and payable on the Effective Date.
10.9 Payment of Taxes in Respect of the Distribution
Reserves. Reorganized O'Brien shall pay, or cause to be paid,
out of the interest earned on funds of each Distribution Reserve,
any tax imposed by any governmental unit on the income generated
by the funds held in that Distribution Reserve. Notwithstanding
anything in Section 10.7 or Section 10.8 to the contrary, prior
to the distribution of any amount in respect of interest earned
on funds held in a Distribution Reserve to holders of an Allowed
Claim, the amount of such interest shall be reduced by the amount
of such taxes so paid by Reorganized O'Brien. Reorganized
O'Brien shall also file or cause to be filed any tax or
information returns related to the Distribution Reserves that are
required by any governmental unit.
36
Article XI: Conditions to Confirmation and Effective
Date
11.1 Conditions to Confirmation. Confirmation of the
Plan is subject to the prior or concurrent satisfaction or
fulfillment of the conditions precedent that the Confirmation
Order, shall have been entered by the Court no later than
February 28, 1996.
11.2 Conditions to Effective Date. The consummation of
the Plan on the Effective Date is subject to the prior or
concurrent satisfaction or fulfillment of each of the following
conditions precedent:
(a) all conditions to the obligations of the parties
in Article 6 of the Acquisition Agreement to consummate the
transactions to be consummated on the Closing Date
thereunder (other than satisfaction or waiver of all
conditions to the occurrence of the Effective Date
hereunder) shall have been satisfied or waived as provided
therein;
(b) all indentures, mortgages, security agreements and
other agreements and instruments to be delivered under or
necessary to effectuate the Plan and consummate the
transactions to be consummated at the Closing (as defined in
the Acquisition Agreement), including without limitation the
NRG New Loan Agreement, the Co-Investment Agreement, the
Management Agreement, and the Liquidating Asset Management
Agreement shall have been executed and delivered by the
Entities that are the parties thereto; and
(c) the Effective Date shall occur on or before March
15, 1996; provided that, if the Effective Date shall not
have occurred on or before March 15, 1996 solely because
ISRA Approval and/or BPU Approval shall not have been
received, the Effective Date shall occur on the earlier of
(i) five (5) Business Days after the first date on which
both ISRA Approval and BPU Approval shall have been received
or (ii) May 15, 1996.
11.3 Waiver of Conditions. The Proponents may waive
any condition or any portion of any condition set forth in this
Article XI at any time without notice and without leave of or
order of the Court.
Article XII: Effects of Confirmation and Effectiveness
of Plan
12.1 Discharge of Debtor. Any consideration
distributed under the Plan shall be in exchange for and in
complete satisfaction, discharge, and release of all Claims or
Interests of any nature whatsoever against the Debtor or any of
its assets or properties; and, except as otherwise provided
herein, upon the Effective Date, the Debtor shall be deemed
discharged and released to the fullest extent permitted by
section 1141 of the Bankruptcy Code from any and all 'debts' (as
that term is defined in Bankruptcy Code section 101(11) and
Claims that arise prior to the Effective Date, including but not
limited to debts of the kind specified in Bankruptcy Code section
502(g), 502(h), or 502(i), whether or not (a) a proof of Claim
based upon such debt is filed or deemed filed under section 501
of the Bankruptcy Code; (b) a Claim based upon such debt is
Allowed under section 502 of the Bankruptcy Code; or (c) the
holder of a Claim based upon such debt has accepted the Plan.
Effective as of the Effective Date, all holders of Claims and
Interests shall be precluded from asserting against the Debtor,
any of its assets or properties, or any property dealt with under
the Plan any other or further Claim based upon any act or
omission, transaction, or other activity of
37
any kind or nature that occurred prior to the Effective Date,
whether or not a proof of claim has been filed, such Claim is
Allowed, or the holder of such Claim accepted the Plan.
12.2 Discharge of Liens. Except as otherwise provided
in the Plan or in any contract, instrument, release, indenture or
other agreement or document created in connection with the Plan,
on the Effective Date, all mortgages, deeds of trust, liens or
other security interests against the property of the Estate shall
be fully released and discharged automatically and without the
need for further action, and all of the rights, title and
interest of any holder of such mortgages, deeds of trust, liens
or other security interests will revert to Reorganized O'Brien
and its successors and assigns. Notwithstanding the foregoing,
each holder of a Claim in any of Classes 1 through 14 that is to
receive full payment of its Claim in Cash on the Effective Date,
in exchange for and as a condition to such holder's receiving
such payment, shall execute and deliver to Reorganized O'Brien a
Uniform Commercial Code termination statement, discharge of tax
Lien, or other documents and instruments, all in such form and
substance as the Proponents may reasonably require, reasonably
necessary to evidence of record the discharge of the Lien or
Liens securing such holder's Claim. If any such holder fails to
execute and deliver to Reorganized O'Brien any such documents or
instruments within 90 days after the tender thereof to such
holder, then the effect shall be the same as though such holder's
distribution had been tendered and remained unclaimed.
12.3 Injunction. Except as provided in the Plan or
Confirmation Order, as of the Effective Date, all Entities that
have held, currently hold or may hold a Claim or other debt or
liability that is discharged or an Interest or other right of an
equity security holder that is terminated pursuant to the terms
of the Plan are permanently restrained and enjoined from taking
any of the following actions on account of any such discharged
Claims, debts or liabilities or terminated Interests or rights:
(a) commencing or continuing in any manner any action or other
proceeding against the Debtor or its property; (b) enforcing,
attaching, collecting or recovering in any manner, any judgment,
award, decree or order against the Debtor or its property; (c)
creating, perfecting or enforcing any lien or encumbrance against
the Debtor or its property; (d) asserting a setoff, right of
subrogation or recoupment of any kind against any debt, liability
or obligation due to the Debtor or its property; and (e)
commencing or continuing any action, in any manner, in any place
that does not comply with or is inconsistent with the provisions
of the Plan. As of the Effective Date, all Entities that have
held, currently hold or may hold a Claim, demand, debt, right,
cause of action or liability that is released pursuant to this
Plan are permanently enjoined from taking any of the following
actions on account of such released claims, demands, debts,
rights, causes of action or liabilities: (i) commencing or
continuing in any manner any action or other proceeding; (ii)
enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order; (iii) creating, perfecting or
enforcing any lien or encumbrance; (iv) asserting a setoff, right
of subrogation or recoupment of any kind against any debt,
liability or obligation due to any released entity; and (v)
commencing or continuing any action, in any manner, in any place
that does not comply with or is inconsistent with the provisions
of the Plan. By accepting distributions pursuant to the Plan,
each holder of an Allowed Claim or an Allowed Interest receiving
distributions pursuant to the Plan will be deemed to have
specifically consented to the injunctions set forth in this
Section.
12.4 Exculpations and Limitations of Liability. To the
fullest extent permitted under applicable law, the Debtor, NRG,
the Equity Committee, the Creditors' Committee, Wexford and their
respective directors, officers and employees (provided that, in
the case of the Debtor, only the current directors, officers and
employees), agents, advisors, attorneys and members and
professionals, acting in such capacity, will neither have nor
incur any liability to any Entity for any act taken or omitted to
be taken in connection with or
38
related to the Chapter 11 Case or the formulation, preparation,
dissemination, implementation, confirmation or consummation of
the Plan, the Disclosure Statement or any contract, instrument,
or other agreement or document created or entered into, or any
other act taken or omitted to be taken in connection with the
Plan or the Chapter 11 Case; provided, however, that the
foregoing provisions of this Section 12.4 will have no effect on:
(1) the liability of any Entity that would otherwise result from
the failure to perform or pay any obligation or liability under
the Plan or any contract, instrument, or other agreement or
document to be delivered in connection with the Plan; and (2) the
liability of any Entity that would otherwise 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.
Article XIII: Retention of Jurisdiction
13.1 Retention of Jurisdiction. Pursuant to sections
1334 and 157 of title 28 of the United States Code, from and
after the Confirmation Date, the Court shall retain and have
jurisdiction of all matters arising in, arising under, and
related to the Chapter 11 Case and the Plan pursuant to, and for
the purposes of, sections 105(a) and 1142 of the Bankruptcy Code
and for, among other things, the following purposes:
(a) to hear and determine objections to allowance of
Claims and Interests and any actions pursuant to Bankruptcy
Code sections 510 and 542 through 553;
(b) to hear and determine any and all adversary
proceedings, applications or litigated matters pending on
the Effective Date or brought after the Effective Date;
(c) to hear and determine any and all applications for
substantial contribution and for Professional Fees;
(d) to hear and determine, pursuant to the provisions
of section 505 of the Bankruptcy Code, all issues related to
the liability of the Debtor for any tax incurred prior to
the Effective Date;
(e) to enable Reorganized O'Brien to commence and
prosecute any and all proceedings relating to Claims or
causes of action which arose prior to the Effective Date or
to recover any transfers, assets, properties or damages to
which it may be entitled;
(f) to allow or disallow any Disputed Claim;
(g) to enter and implement such orders as may be
appropriate in the event confirmation of the Plan is for any
reason stayed, reversed, revoked, modified or vacated;
(h) to modify any provision of the Plan to the extent
permitted by the Bankruptcy Code and to correct any defect,
cure any omission or reconcile any inconsistency in the Plan
or the Confirmation Order as may be necessary to carry out
the purposes and intent of the Plan;
(i) to hear and determine any dispute arising under
the Plan or the Transaction Documents, or concerning the
conduct of any parties in interest with respect to the Plan
and the Transaction Documents or the conduct of the Chapter
11 Case, its implementation and execution of any necessary
documents thereunder; and to
39
hear and determine any requests to amend, modify or correct
the Plan, provided that such matters are brought to the
Court before substantial consummation as defined by
Bankruptcy Code section 1101(2), and subject further to the
restrictions provided by Bankruptcy Code section 1127(b);
(j) to enforce and implement the terms of the Plan,
including the consummation thereof and the making of all
payments required thereunder;
(k) to hear and determine any motion to assume,
reject, or assign an executory contract or unexpired lease
pursuant to Bankruptcy Code section 365;
(l) to enforce all discharge provisions of the Plan
and Bankruptcy Code sections 1141 and 524 through
appropriate means, including without limitation the granting
of injunctive relief; and
(m) to enter such orders as may be necessary or
appropriate in furtherance of consummation and
implementation of the Plan.
13.2 Failure of Court to Exercise Jurisdiction. If the
Court abstains from exercising, or declines to exercise,
jurisdiction or is otherwise without jurisdiction over any matter
arising in, arising under, or related to the Chapter 11 Case
including the matters set forth in Section 13.1 of the Plan, this
Article XIII shall have no effect upon and shall not control,
prohibit, or limit the exercise of jurisdiction by any other
court having jurisdiction with respect to such matter.
Article XIV: Miscellaneous Provisions
14.1 Compliance With Tax Requirements. In connection
with the Plan, Reorganized O'Brien shall comply with all
withholding and reporting requirements imposed by federal, state,
local and foreign taxing authorities, and all distributions
hereunder shall be subject to such withholding and reporting
requirements. Creditors may be required to provide certain tax
information as a condition to receipt of distributions pursuant
to the Plan.
14.2 Post-Confirmation Date Fees and Expenses of
Professional Persons. After the Effective Date, Reorganized
O'Brien shall, in the ordinary course of business and without the
necessity for any approval by the Court, pay the reasonable fees
and expenses of persons employed by Reorganized O'Brien related
to implementation and consummation of the Plan; provided,
however, that no such fees and expenses shall be paid except upon
receipt by Reorganized O'Brien of a detailed written invoice.
14.3 Retention of Avoidance Actions. Pursuant to
Bankruptcy Code section 1123(b)(3), following the Effective Date
the Debtor shall retain all claims or causes of action included
in its Estate, including without limitation any avoidance actions
under sections 544, 549 and 550 of the Bankruptcy Code.
14.4 Binding Effect. The Plan shall be binding upon
and inure to the benefit of the Debtor, the holders of Claims or
Interests (whether or not such holders have filed a proof of
Claim or Interest or have accepted the Plan), NRG, the Committees
and Wexford and their respective successors and assigns;
provided, however, that if the Plan is not confirmed, the Plan
shall be deemed null and void and nothing contained herein shall
be deemed (i) to constitute a waiver or release of any Claims by
the Debtor or any other Entity,
40
(ii) to prejudice in any manner the rights of the Debtor or any
other Entity, or (iii) to constitute any admission by the Debtor
or any other Entity.
14.5 Governing Law. Unless a rule of law or procedure
is supplied by federal law (including the Bankruptcy Code and the
Bankruptcy Rules) or the Delaware General Corporation Law or the
law of the jurisdiction of organization of any entity formed or
to be formed pursuant to the Plan, the internal laws of the State
of New Jersey shall govern the construction and implementation of
the Plan and any agreements, documents, and instruments executed
in connection with the Plan or the Chapter 11 Case, except as may
otherwise be provided in such agreements, documents, and
instruments.
14.6 Amendments and Modifications. The Proponents may,
in accordance with section 1127(a) of the Bankruptcy Code, amend
or modify the Plan prior to the entry of the Confirmation Order.
Any such amendment or modification proposed prior to entry of the
Disclosure Statement Order shall not require the consent of the
Equity Committee or Wexford; provided, however, that, if any such
amendment or modification is made without the consent of the
Equity Committee or Wexford, such entity shall be eliminated as a
proponent of the Plan. After the entry of the Confirmation
Order, the Proponents may, in accordance with section 1127(b) of
the Bankruptcy Code, amend or modify the Plan, or remedy any
defect or omission or reconcile any inconsistency in the Plan in
such manner as may be necessary to carry out the purpose and
intent of the Plan.
14.7 Revocation. Without limiting the application of
Section 14.6 and subject to the obligations of O'Brien and NRG
under the Acquisition Agreement and NRG's agreement set forth in
a letter dated September 29, 1995 addressed to the Honorable
Rosemary Gambardella and counsel to the Debtor (the "Bid
Letter"), the Proponents reserve the right to revoke and withdraw
the Plan prior to entry of the Confirmation Order.
Notwithstanding the foregoing, unless the Proponents, by prior
written notice to the Court, shall have waived the effectiveness
of this provision, the Proponents shall be deemed to have revoked
the Plan if the Effective Date shall not have occurred on or
before the date specified in Section 11.2(c). If the Proponents
revoke or withdraw the Plan pursuant to this Section 14.7, then
the Plan shall be deemed null and void and, in such event,
nothing contained herein shall be deemed to constitute a waiver
or release of any Claims by or against the Debtor or any Entity
in any further proceedings involving the Debtor. Notwithstanding
anything to the contrary set forth herein, nothing contained
herein shall be construed to modify any provision of the
Acquisition Agreement or the Bid Letter or any of NRG's rights
and obligations that may be expressly set forth in the
Acquisition Agreement or Bid Letter.
14.8 No Modification of Subordination Rights.
Notwithstanding any provision contained herein to the contrary,
nothing in the Plan shall modify or be deemed to modify any
subordination rights in favor of the holders of Senior Debt under
the Old Indentures, and any distributions from the Class 15C Cash
Payment Fund that, if made to the holders of Old Subordinated
Noteholder Claims in accordance with Section 5.13, would violate
the subordination provisions of the Old Indentures shall be
deemed automatically assigned, and shall be paid by Reorganized
O'Brien directly, to the holders of Senior Debt entitled thereto
in accordance with the applicable terms of the Old Indentures.
14.9 Severability. Should any provision in the Plan be
determined to be unenforceable, such determination shall in no
way limit or affect the enforceability and operative effect of
any other provisions of the Plan.
41
14.10 De Minimis Distributions. No distribution of
less than ten dollars ($10.00) in Cash shall be made to any
holder of an Allowed Claim. Such undistributed amount will be
the property of and released to Reorganized O'Brien.
14.11 Interpretation and Rules of Construction. Unless
otherwise specified, all section, article, schedule and exhibit
references in the Plan are to the respective section in, article
of, or schedule or exhibit to, the Plan, as the same may be
amended, waived, or modified from time to time. The rules of
construction contained in section 102 of the Bankruptcy Code
shall apply to the construction of the Plan.
14.12 Other Terms. The words 'herein,' 'hereof,'
'hereto,' 'hereunder,' and others of similar import refer to the
Plan as a whole and not to any particular section, subsection, or
clause contained in the Plan.
14.13 Headings. Headings are used in the Plan for
convenience of reference only, and shall not constitute a part of
the Plan for any other purpose. Headings shall not limit or
otherwise affect the provisions of the Plan.
14.14 Incorporation of Exhibits. Each Schedule and
Exhibit to the Plan annexed hereto and each of the Plan Documents
are incorporated into and are a part of the Plan as if set forth
in full herein.
14.15 Termination of Existence of Committees. The
existence of the Equity Committee shall terminate on the
Effective Date. The Creditors' Committee shall continue in
existence following the Effective Date for the sole and limited
purpose of performing its obligations under Section 10.2(b) of
the Plan; provided that no expenses or other amounts shall be
payable hereunder for services rendered or expenses incurred
after the Effective Date, to or for the benefit of the Creditors'
Committee or any member thereof other than the Objection
Resolution Expenses that are payable pursuant to Section 10.2(b).
Upon the Final Resolution Date, the existence of the Creditors'
Committee shall terminate.
42
Dated at New York, New York, this 31st day of January, 1996.
O'BRIEN ENVIRONMENTAL ENERGY, INC.
By /s/ John B. Kelly
Name: John B. Kelly
NRG ENERGY, INC.
By /s/ Craig Mataczynski
Name: Craig A. Mataczynski
OFFICIAL COMMITTEE OF EQUITY
SECURITY HOLDERS OF O'BRIEN
ENVIRONMENTAL ENERGY, INC.
By /s/ Larry Littman
Name: Larry Littman
WEXFORD MANAGEMENT CORP.
By /s/ Spyros S. Skouras, Jr.
Name: Spyros S. Skouras, Jr.
SILLS, CUMMIS, ZUCKERMAN, RADIN,
TISCHMAN, EPSTEIN & GROSS, P.C.
One Riverfront Plaza, 13th Floor
Newark, NJ 07102-5400
By /s/ Jack Zackin
Name: Jack Zackin
Attorneys for O'Brien Environmental
Energy, Inc.
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
By /s/ Michael A. Rosenthal P.C.
Name: Michael A. Rosenthal
P.C.
Attorneys for NRG Energy, Inc.
43
MARCUS MONTGOMERY P.C.
53 Wall Street, 8th Floor
New York, NY 10005-2815
By /s/ Claude D. Montgomery
Name: Claude D. Montgomery
Attorneys for the Official
Committee of Equity Security
Holders
ROSENMAN & COLIN LLP
575 Madison Avenue
New York, NY 10022-2585
By /s/ Jeff J. Friedman
Name: Jeff J. Friedman
Attorneys for Wexford Management Corp.
44