Exhibit 2.1
CLEARY, GOTTLIEB, STEEN & HAMILTON
Deborah M. Buell (DB 3562)
James L. Bromley (JB 5125)
One Liberty Plaza
New York, New York 10006
and
JENNER & BLOCK, LLC
Vincent E. Lazar (VL 7320)
Christine L. Childers (CC 0092)
One IBM Plaza
Chicago, Illinois 60611
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------x
:
In re: : Chapter 11
:
OGDEN NEW YORK SERVICES, INC., et al., : Case Nos. 02-40826 (CB), et al.
:
Debtors and Debtors in Possession :
: Jointly Administered
:
----------------------------------------------x
DEBTORS' JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE
September 8, 2003
THIS IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION OF THE REORGANIZATION
PLAN. ACCEPTANCES OR REJECTIONS MAY NOT BE SOLICITED UNTIL A DISCLOSURE
STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY COURT. A DISCLOSURE STATEMENT HAS
BEEN SUBMITTED FOR APPROVAL BUT HAS NOT BEEN APPROVED BY THE COURT.
Covanta Energy Corporation and those of its affiliates set forth on
Exhibit 1 attached hereto (each a "Reorganizing Debtor" and collectively, the
"Reorganizing Debtors") and AMOR 14 Corporation, Covanta SIGC Energy, Inc.,
Covanta SIGC Energy II, Inc., Heber Field Company, Heber Geothermal Company and
Second Imperial Geothermal Company, L.P. (each a "Heber Debtor" and
collectively, the "Heber Debtors"), as debtors and debtors in possession under
chapter 11 of title 11 of the United States Code, in each of their separate
cases, which have been consolidated for procedural purposes only, hereby propose
and file this Joint Plan of Reorganization.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION...............................1
1.1 Definitions.......................................................1
ARTICLE II TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY
TAX CLAIMS.......................19
2.1 Non-Classification...............................................19
2.2 Administrative Expense Claims....................................19
2.3 Compensation and Reimbursement Claims............................19
2.4 Priority Tax Claims..............................................21
2.5 DIP Financing Facility Claims....................................21
ARTICLE III CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS...............22
3.1 General Rules of Classification..................................22
ARTICLE IV TREATMENT OF CLAIMS AND EQUITY INTERESTS....................22
4.1 Class 1 - Allowed Priority Non-Tax Claims........................25
4.2 Class 2 - Allowed Project Debt Claims............................25
4.3 Class 2H - Allowed Heber Secured Claims..........................25
4.4 Class 3 - Allowed Reorganized Covanta Secured Claims.............26
4.5 Class 4 - Allowed Operating Company Unsecured Claims.............28
4.6 Class 5 - Allowed Covanta Energy Americas Unsecured Claims.......28
4.7 Class 6 - Allowed Covanta Unsecured Claims.......................29
4.8 Class 7 - Allowed Heber Unsecured Claims.........................29
4.9 Class 8 - Allowed Convenience Claims.............................29
4.10 Class 9 - Intercompany Claims....................................30
4.11 Class 10 - Subordinated Claims...................................30
4.12 Class 11 - Equity Interests in Subsidiary Debtors................31
4.13 Class 12 - Equity Interests in Covanta Huntington, Covanta
Onondaga and DSS Environmental...................................31
4.14 Class 13 - Old Covanta Stock Equity Interests....................31
4.15 Class 14 - Equity Interests in Heber Debtors.....................32
4.16 Settlement of Loss Sharing Litigation............................32
ARTICLE V ACCEPTANCE OR REJECTION OF THE REORGANIZATION PLAN..........32
5.1 Voting of Claims.................................................33
5.2 Acceptance by a Class............................................33
5.3 Presumed Acceptance of Plan......................................33
5.4 Presumed Rejection of Plan.......................................33
5.5 Cramdown.........................................................33
ARTICLE VI MEANS FOR IMPLEMENTATION....................................33
6.1 Exit Financing...................................................33
6.2 Implementation of Geothermal Sale................................34
6.3 Authorization of Common Stock, Reorganization Plan Notes and
Reorganized Heber Equity Interests...............................34
6.4 Formation of ESOP................................................34
6.5 Cancellation of Existing Securities and Agreements...............34
6.6 Board of Directors and Executive Officers........................35
6.7 Deemed Consolidation of Debtors for Plan Purposes Only...........35
6.8 Continued Corporate Existence; Vesting of Assets in the
Reorganized Debtors and Heber Debtors and Corporate
Restructuring....................................................35
6.9 Amended Organizational Documents.................................36
6.10 Settlements......................................................36
6.11 Employee Benefits................................................36
6.12 Funding the Operating Reserve....................................36
6.13 Management Incentive Payment.....................................36
ARTICLE VII DISTRIBUTIONS...............................................37
7.1 Distribution Record Date.........................................37
7.2 Date of Distributions............................................37
7.3 Disbursing Agent.................................................37
7.4 Rights and Powers of Disbursing Agent............................37
7.5 Surrender of Instruments.........................................38
7.6 Delivery of Distributions........................................38
7.7 Manner of Payment Under Plan.....................................38
7.8 De Minimis and Fractional Distributions..........................39
7.9 Exemption from Securities Laws...................................39
7.10 Setoffs..........................................................39
7.11 Allocation of Plan Distribution Between Principal and Interest...39
7.12 Withholding and Reporting Requirements...........................40
7.13 Time Bar to Cash Payments........................................40
7.14 Closing of Chapter 11 Cases......................................40
ARTICLE VIII PROCEDURES FOR RESOLVING AND TREATING DISPUTED CLAIMS.......40
8.1 No Distribution Pending Allowance................................40
8.2 Resolution of Disputed Claims and Equity Interests...............41
8.3 Estimation of Claims and Equity Interests........................41
8.4 Reserve Account for Disputed Claims..............................42
8.5 Allowance of Disputed Claims.....................................42
8.6 Release of Funds from Disputed Claims Reserve....................42
ARTICLE IX TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.......43
9.1 General Treatment................................................43
9.2 Cure of Defaults.................................................43
9.3 Approval of Assumption of Certain Executory Contracts............44
9.4 Approval of Rejection of Executory Contracts and Unexpired
Leases...........................................................44
9.5 Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to the
Reorganization Plan..............................................44
9.6 Survival of Debtors' Corporate Indemnities.......................45
9.7 Reservation of Rights Under Insurance Policies and Bonds.........45
ARTICLE X CONDITIONS PRECEDENT TO THE CONFIRMATION DATE AND THE
EFFECTIVE DATE..............................................45
10.1 Conditions to Confirmation.......................................45
10.2 Conditions Precedent to the Effective Date.......................46
10.3 Waiver of Conditions.............................................47
10.4 Failure to Satisfy or Waiver of Conditions Precedent.............47
ARTICLE XI EFFECT OF CONFIRMATION......................................48
11.1 Revesting of Assets..............................................48
11.2 Discharge of Claims and Cancellation of Equity Interests.........48
11.3 Discharge of Reorganizing Debtors and Heber Debtors..............48
11.4 Binding Effect...................................................49
11.5 Term of Injunctions or Stays.....................................49
11.6 Injunction Against Interference with Plan........................49
11.7 Exculpation......................................................49
11.8 Rights of Action.................................................50
11.9 Injunction.......................................................50
11.10 Release..........................................................51
ARTICLE XII RETENTION OF JURISDICTION...................................51
12.1 Jurisdiction of Court............................................51
ARTICLE XIII MISCELLANEOUS PROVISIONS....................................53
13.1 Deletion of Classes and Subclasses...............................53
13.2 Dissolution of the Committee.....................................53
13.3 Effectuating Documents and Further Transactions..................53
13.4 Payment of Statutory Fees........................................54
13.5 Modification of Plan.............................................54
13.6 Courts of Competent Jurisdiction.................................54
13.7 Exemption From Transfer Taxes....................................54
13.8 Rules of Construction............................................55
13.9 Computation of Time..............................................55
13.10 Successors and Assigns...........................................55
13.11 Notices..........................................................56
13.12 Severability.....................................................56
13.13 Governing Law....................................................57
13.14 Exhibits.........................................................57
13.15 Counterparts.....................................................57
EXHIBITS TO REORGANIZATION PLAN
Exhibit Number Exhibit
1 List of Reorganizing Debtors
2 List of Liquidating Debtors
3 List of Reorganizing Debtors That Filed on Initial
Petition Date and Subsequent Petition Date
4 Description of Settlement of Loss Sharing Litigation
9.1A List of Rejecting Debtors
9.1B List of Assuming Debtors
EXHIBITS TO REORGANIZATION PLAN SUPPLEMENT
Exhibit Number Exhibit
1 Reorganization Plan Warrant Agreement
2 New CPIH Funded Debt
3 New CPIH Revolver Facility
4 New High Yield Indenture
5 New High Yield Secured Note
6 New L/C Facility
7 New Revolver Facility
8 Reinstated L/C Facility
9 Reorganization Plan CPIH Preferred Stock
10 Reorganization Plan Unsecured Note
11 Form of Reorganization Plan Warrant
12 Settlement of Loss Sharing Litigation
INTRODUCTION
These Chapter 11 Cases have been consolidated for procedural
purposes only and are being jointly administered pursuant to an order of the
Court. While this is a Joint Reorganization Plan for each of the Reorganizing
Debtors and Heber Debtors, and without limiting the terms of Section 6.8 of this
Reorganization Plan, it does NOT provide that these Chapter 11 Cases will be
substantively consolidated. Capitalized terms used herein shall have the
meanings ascribed to such terms in Article I of this Reorganization Plan.
Reference is made to the Disclosure Statement accompanying
this Reorganization Plan, including the Exhibits thereto, for a discussion of
the Reorganizing Debtors, and Heber Debtors' history, business, results of
operations and properties, and for a summary and analysis of the Reorganization
Plan. All creditors are encouraged to consult the Disclosure Statement and read
this Reorganization Plan carefully before voting to accept or reject this
Reorganization Plan.
NO SOLICITATION MATERIALS, OTHER THAN THE DISCLOSURE STATEMENT
AND RELATED MATERIALS TRANSMITTED THEREWITH AND APPROVED BY THE COURT, HAVE BEEN
AUTHORIZED BY THE COURT FOR USE IN SOLICITING ACCEPTANCES OR REJECTIONS OF THIS
REORGANIZATION PLAN.
The Reorganizing Debtors and Heber Debtors reserve the right
to proceed with confirmation of this Reorganization Plan as to some but not all
of the Reorganizing Debtors and/or Heber Debtors.
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In addition to such other terms as are defined in
other Sections of this Reorganization Plan, the following terms (which appear
herein as capitalized terms) shall have the meanings set forth below, such
meanings to be applicable to both the singular and plural forms of the terms
defined. A term used in this Reorganization Plan and not defined herein or
elsewhere in this Reorganization Plan, but that is defined in the Bankruptcy
Code has the meaning set forth therein.
"Administrative Expense Claim" means a Claim under sections
503(b), 507(a)(1), 507(b) or 1114(e)(2) of the Bankruptcy Code, including,
without limitation, any actual and necessary expenses incurred after the
Petition Date for preserving the assets of the Reorganizing Debtors and Heber
Debtors, any actual and necessary costs and expenses of operating the businesses
of the Reorganizing Debtors and Heber Debtors incurred after the Petition Date,
all compensation and reimbursement of expenses allowed by the Court under
sections 330, 331 or 503 of the Bankruptcy Code, any reclamation claims arising
under section 546(c) of the Bankruptcy Code, any fee chargeable under section
1930 of Chapter 123 of Title 28 of the United States Code and any amounts
payable with respect to Tranche A or Tranche B of the DIP Financing Facility.
"Administrative Expense Claim Bar Date" means the date that is
thirty (30) days following the Effective Date. The Administrative Expense Claim
Bar Date shall apply to all holders of Administrative Expense Claims not
satisfied prior to the Administrative Expense Claim Bar Date, except that the
Administrative Expense Claim Bar Date shall not apply to holders of the
following limited types of claims: (a) United States Trustee Claims; (b)
post-petition liabilities incurred and payable in the ordinary course of
business by any Reorganizing Debtor or Heber Debtor; or (c) fees and expenses
incurred by (i) Retained Professionals and (ii) Persons employed by the
Reorganizing Debtors or Heber Debtors or serving as independent contractors to
the Reorganizing Debtors or Heber Debtors in connection with their
reorganization efforts, including without limitation the Balloting Agent.
"Additional Class 3 Warrants" means Reorganization Plan
Warrants issued by Reorganized Covanta pursuant to this Reorganization Plan
representing [ ____ percent (__%)] of Reorganized Covanta's Common Stock on a
fully diluted basis as of the Effective Date.
"Additional New Lenders" means the group of new lenders
organized by [ ] that together are responsible for underwriting $45 million of
the funding commitment with respect to the Exit Financing Agreements, which will
be allocated ratably among the New Revolver Facility, the New CPIH Revolver
Facility and the New L/C Facility.
"Agent Banks" means Bank of America, N.A., as Administrative
Agent, and Deutsche Bank, AG, New York Branch, as Documentation Agent, under the
Prepetition Credit Agreement.
"Allowed" means, with reference to the portion of any Claim
(other than Administrative Expense Claims) or Equity Interest and with respect
to each Reorganizing Debtor or Heber Debtor, (a) any such Claim against or
Equity Interest in such Reorganizing Debtor or Heber Debtor which has been
listed by a Reorganizing Debtor or Heber Debtor in its Schedules, as such
Schedules have been or may be amended or supplemented by a Reorganizing Debtor
or Heber Debtor from time to time in accordance with Bankruptcy Rule 1009, as
liquidated in amount and not disputed or contingent and for which no contrary
proof of claim or interest has been filed, (b) any Claim or Equity Interest
allowed (i) under the Reorganization Plan or under any settlement agreement
incorporated or otherwise implemented hereby, (ii) by Final Order, or (iii) as
to which the liability of each Reorganizing Debtor or Heber Debtor and the
amount thereof are determined by a final, non-appealable order of a court of
competent jurisdiction other than the Court or (c) as to which a proof of claim
has been timely filed before the applicable Bar Date in a liquidated amount with
the Court pursuant to the Bankruptcy Code or any order of the Court, provided
that (i) no objection to the allowance of such Claim or notice to expunge such
Claim has been interposed by the Reorganizing Debtors, the Heber Debtors, the
Committee, the United States Trustee or any other party in interest as permitted
under the Bankruptcy Code before any final date for the filing of such
objections or motions set forth in the Reorganization Plan, the Confirmation
Order or other order of the Court, or (ii) if such objection or motion has been
filed and not withdrawn, such objection or motion has been overruled by a Final
Order (but only to the extent such objection or motion has been overruled);
provided, further that any such Claims or Equity Interests allowed solely for
the purpose of voting to accept or reject the Reorganization Plan pursuant to an
order of the Court shall not be considered "Allowed Claims" or "Allowed Equity
Interests" for the purpose of distributions hereunder. Except as expressly
stated in this Reorganization Plan or as provided under section 506(b) of the
Bankruptcy Code or a Final Order of the Court, an Allowed Claim shall not
include interest on the principal amount of any Claim accruing from and after
the Petition Date or any fees (including attorneys' fees), costs or charges
(including late payment charges) related to any Claim accruing from or after the
Petition Date.
"Allowed Administrative Expense Claim" means the portion of
any Administrative Expense Claim (including any interest for which the
Reorganizing Debtors or Heber Debtors are legally obligated) that is (i)
incurred or arising after the Petition Date and prior to the Effective Date,
(ii) for those Administrative Expense Claims as to which the Administrative
Expense Claim Bar Date is applicable, which has been filed before the
Administrative Expense Bar Date, and (iii) as to which no objection to the
allowance of such Administrative Expense Claim has been filed by the
Reorganizing Debtors, the Heber Debtors, the Committee, the United States
Trustee or any other party in interest as permitted under the Bankruptcy Code.
All Administrative Expense Claims arising under or relating to the DIP Financing
Facility are deemed Allowed Administrative Expense Claims.
"Allowed Class o Claim " means an Allowed Claim in the
specified Class.
"Allowed Priority Tax Claims" means any Claim that is Allowed
pursuant to Section 2.4 of this Reorganization Plan.
"Allowed Subclass 3A Secured Claim Amount" means the allowed
amount of the Secured Bank Claims, currently estimated to be $434 million
including accrued but unpaid fees and interest, but subject to ultimate
resolution of the claims under the Prepetition Credit Agreement.
"Allowed Subclass 3B Secured Claim Amount" means the allowed
amount of the 9.25% Debenture Claims, currently estimated to be $105 million
including accrued but unpaid fees and interest, but subject to ultimate
resolution of the claims under the 9.25% Debentures.
"Assuming Debtors' Schedule of Rejected Contracts and Leases"
means a schedule of the executory contracts and unexpired leases to which each
of the Assuming Debtors (as defined in Section 9.1(b) of this Reorganization
Plan) or Heber Debtors is a party that will be rejected under Article IX of the
Plan, which schedule shall be filed and served on the relevant parties no less
than twenty-three (23) days prior to the Confirmation Hearing.
"Ballot" means the ballot that accompanies the Disclosure
Statement upon which holders of Impaired Claims entitled to vote on the
Reorganization Plan shall indicate their acceptance or rejection of the
Reorganization Plan.
"Ballot Deadline" means the date and time set by the Court by
which the Balloting Agent must receive all Ballots.
"Balloting Agent" means Bankruptcy Services LLC ("BSI") or
such other entity authorized by the Court to distribute, collect and tally
Ballots.
"Bankruptcy Code" means title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Cases.
"Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure promulgated by the United States Supreme Court under 28 U.S.C. ss.
2075 and the local rules of the Court (including any applicable local rules and
standing and administrative orders of the Court), as now in effect or hereafter
amended, as applicable to the Chapter 11 Cases.
"Bar Date" means the applicable date or dates fixed by the
Court or this Reorganization Plan for filing proofs of claim or interests in the
Chapter 11 Cases.
"Bondholders Committee" means the Informal Committee of
Secured Debenture Holders of certain holders of, and the Indenture Trustee for,
the 9.25% Debentures issued by Covanta.
"Business Day" means any day other than a Saturday, Sunday or
"legal holiday" as such term is defined in Bankruptcy Rule 9006(a).
"Cash" means lawful currency of the United States, including
cash equivalents, bank deposits, checks and other similar items, unless
otherwise indicated.
"Chapter 11 Cases" means the voluntary cases under Chapter 11
of the Bankruptcy Code commenced by each Reorganizing Debtor and each Heber
Debtor, which cases are currently pending before the Court under the caption In
re Ogden Services New York, Inc. et al., Case Nos. 02-40826 (CB), et al.
"Claim" has the meaning set forth in section 101 of the
Bankruptcy Code, whether or not asserted.
"Claims Objection Deadline" means that day which is one
hundred eighty (180) days after the Effective Date, as the same may be extended
from time to time by the Court, without further notice to parties in interest.
"Class" means any group of similar Claims or Equity Interests
described in Article IV of the Reorganization Plan in accordance with section
1123(a)(1) of the Bankruptcy Code.
"Committee" means the Official Committee of Unsecured
Creditors appointed by the Office of the United States Trustee in the Chapter 11
Cases pursuant to section 1102 of the Bankruptcy Code, as appointed, modified or
reconstituted from time to time.
"Confirmation Date" means the date on which the clerk of the
Court enters the Confirmation Order on the docket, within the meaning of
Bankruptcy Rules 5003 and 9021.
"Confirmation Hearing" means the hearing held by the Court to
consider confirmation of the Reorganization Plan pursuant to section 1128 of the
Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
"Confirmation Order" means the order of the Court confirming
the Reorganization Plan pursuant to section 1129 of the Bankruptcy Code,
together with any subsequent orders, if any, pursuant to sections 1127 and 1129
of the Bankruptcy Code approving modifications to the Reorganization Plan, which
in each case shall be in form and substance satisfactory to the Reorganizing
Debtors.
"Convenience Claim" means any Unsecured Claim, other than an
Intercompany Claim, against any Operating Company Reorganizing Debtor in an
amount equal to or less than $2,500.
"Convertible Subordinated Bond Claims" means any Unsecured
Claim that arises out of, or is attributable to, ownership of the Convertible
Subordinated Bonds.
"Convertible Subordinated Bonds" means all the convertible
subordinated notes issued by Covanta, including (i) those in the aggregate
principal amount of $85,000,000 bearing an interest rate of 6% per annum and
(ii) those in the aggregate principal amount of $63,500,000 bearing an interest
rate of 5-3/4% per annum.
"Court" collectively means the United States Bankruptcy Court
for the Southern District of New York and, to the extent it may exercise
jurisdiction over the Chapter 11 Cases, the United States District Court for the
Southern District of New York or if either such court ceases to exercise
jurisdiction over the Chapter 11 Cases, such other Court or adjunct thereof that
exercises competent jurisdiction over the Chapter 11 Cases or any proceeding
therein.
"Covanta" means Covanta Energy Corporation, a Reorganizing
Debtor and the ultimate corporate parent directly or indirectly holding an
interest in all the Reorganizing Debtors and Heber Debtors in these Chapter 11
Cases.
"Covanta Energy Americas" means Covanta Energy Americas, Inc.,
a Reorganizing Debtor.
"Covanta Energy Americas Unsecured Claim" means (i) all
Unsecured Claims asserted against Covanta Energy Americas, (ii) without
duplication of clause (i) of this definition, the 9.25% Deficiency Claim, and
(iii) without duplication of clause (i) of this definition, the Prepetition
Lender Deficiency Claim; provided, however, that the term Covanta Unsecured
Claims shall not include any Convenience Claims.
"Covanta Huntington" means Covanta Huntington, L.P., a
Reorganizing Debtor.
"Covanta Onondaga" means Covanta Onondaga, L.P., a
Reorganizing Debtor.
"Covanta Unsecured Claims" means (i) all Unsecured Claims
asserted against Covanta or any Intermediate Holding Company Debtor, (ii)
without duplication of clause (i) of this definition, the 9.25% Deficiency
Claim, and (iii) without duplication of clause (i) of this definition, the
Prepetition Lender Deficiency Claim; provided, however, that the term Covanta
Unsecured Claims shall not include any Convenience Claims.
"CPIH" means Covanta Power International Holdings, Inc., a
Reorganizing Debtor.
"Deficiency Claim" means an Allowed Claim of a holder equal to
the amount by which the aggregate Allowed Claims of such holder exceed the sum
of (a) any setoff rights of the holder permitted under section 553 of the
Bankruptcy Code plus (b) (without duplication of clause (a)) the Secured Claim
of such holder; provided, however, that if the holder of a Secured Claim makes
the election pursuant to section 1111(b)(2) of the Bankruptcy Code, there shall
not be a Deficiency Claim in respect of such Claim.
"DIP Agents" means Bank of America, N.A., as administrative
agent, and Deutsche Bank AG, New York branch, as documentation agent, under the
DIP Financing Facility.
"DIP Financing Facility" means the Debtor-in-Possession
Credit Agreement, dated as of April 1, 2002, among the Reorganizing Debtors, the
Heber Debtors, the Liquidating Debtors, the DIP Lenders and the DIP Agents, as
it has been or may be amended and modified from time to time, and as approved
and extended by order of the Court.
"DIP Lenders" means those Persons from time to time party to
the DIP Financing Facility as lenders.
"Disbursing Agent" means Reorganized Covanta, in its capacity
as disbursing agent under this Reorganization Plan, together with such other
persons as may be selected by Reorganized Covanta in accordance with Section 7.3
of this Reorganization Plan.
"Disclosure Statement" means the written disclosure statement
that relates to this Reorganization Plan and is approved by the Court pursuant
to section 1125 of the Bankruptcy Code, as such disclosure statement may be
amended, modified, or supplemented (and all exhibits and schedules annexed
thereto or referred to therein) and that is prepared and distributed in
accordance with section 1125 of the Bankruptcy Code and Bankruptcy Rule 3018.
"Disputed Claim" means that portion (including, when
appropriate, the whole) of a Claim that is not an Allowed Claim, is subject to
an Estimation Request, or as to which an objection has been filed. For the
purposes of the Reorganization Plan, a Claim shall be considered a Disputed
Claim in its entirety before the time that an objection has been or may be filed
if: (a) the amount or classification of the Claim specified in the relevant
proof of claim exceeds the amount or classification of any corresponding Claim
scheduled by a Reorganizing Debtor or Heber Debtor in its Schedules; (b) any
corresponding Claim scheduled by a Reorganizing Debtor or Heber Debtor has been
scheduled as disputed, contingent or unliquidated in its Schedules; or (c) no
corresponding Claim has been scheduled by a Reorganizing Debtor or Heber Debtor
in its Schedules.
"Disputed Claims Reserve" means, with respect to each Class of
Claims in which there exists any Disputed Claim on or after the Effective Date
other than Class 4, Cash, Reorganization Plan Notes or Reorganization Plan
Equity Securities and Warrants to be set aside by the Disbursing Agent in
separate accounts corresponding to each such Class of Claims in which there are
Disputed Claims, in an amount such that, if such Disputed Claims become Allowed
Claims, there will be sufficient Cash, Reorganization Plan Notes or
Reorganization Plan Equity Securities and Warrants to pay all such Disputed
Claims pro rata with Allowed Claims in such Class with respect to each such
Class of Claims in accordance with the provisions of this Reorganization Plan.
Each Disputed Claims Reserve is to be maintained under this Reorganization Plan,
as set forth more fully in Article VIII of this Reorganization Plan.
"Distributable Cash" means an amount of Cash equal to the
lesser of (i) $60 million, and (ii) the amount of (x) Free Cash minus (y) Exit
Costs.
"Distribution" means the distribution to holders of Allowed
Claims in accordance with this Reorganization Plan of Cash, Reorganization Plan
Notes, Reorganization Plan Equity Securities and Warrants or other property, as
the case may be.
"Distribution Address" means (i) the address of the holder of
a Claim set forth in the relevant proof of claim, (ii) the address set forth in
any written notices of address change delivered to the Disbursing Agent after
the date of any related proof of claim, or (iii) if no proof of claim is filed
in respect to a particular Claim, the address set forth in the relevant
Reorganizing Debtor's Schedules of Assets and Liabilities or register maintained
for registered securities.
"Distribution Date" means the date that is the later of (i)
the Effective Date or as soon thereafter as reasonably practicable, but in no
event later than thirty (30) days after the Effective Date and (ii) the first
Business Day after the date that is thirty (30) days after the date such Claims
become Allowed Claims or otherwise become payable under the Reorganization Plan.
"Distribution Record Date" means the Confirmation Date or,
with respect to holders of 9.25% Debenture Claims, the date fixed by the Court
as the record date for determining the holders of 9.25% Debentures who are
entitled to receive Distributions under this Reorganization Plan.
"Domestic Reorganizing Debtors" means the Reorganizing Debtors
other than CPIH and its direct and indirect subsidiaries.
"DSS Environmental" means DSS Environmental, Inc., a
Reorganizing Debtor.
"Effective Date" means a date, which is a Business Day,
selected by each of the Reorganizing Debtors and Heber Debtors that is no more
than ten (10) Business Days following the date on which all conditions set forth
in Section 10.2 of this Reorganization Plan have been satisfied or expressly
waived pursuant to Section 10.3 of this Reorganization Plan.
"Elective Convenience Claim" means any Unsecured Claim, other
than an Intercompany Claim, against any of the Operating Company Reorganizing
Debtors for which the holder of the Unsecured Claim elects, by so indicating in
writing on a validly executed and timely delivered Ballot, to receive (at the
option of the Reorganizing Debtors) either (A) payment in Cash, in an amount
equal to the lesser of $2,500 or 75% of the Allowed Class 4 Claim, or (B) the
Reorganization Plan Unsecured Notes that such holder would otherwise have been
entitled to receive pursuant to the Reorganization Plan in settlement, release
and discharge of the Allowed Class 4 Claim.
"Equity Interest" means as to each Reorganizing Debtor and
Heber Debtor, any equity security, partnership interest or share of common stock
or other instrument evidencing an ownership interest in such Reorganizing Debtor
or Heber Debtor, regardless of whether it may be transferred, and any option,
warrant or right, contractual or otherwise, to acquire an ownership interest or
other equity security in such Reorganizing Debtor or Heber Debtor and shall
include any redemption, conversion, exchange, voting participation, dividend
rights and liquidation preferences relating thereto.
"ESOP" means an employee stock ownership plan within the
meaning of section 4975(e)(7) of the Internal Revenue Code of 1986, as amended.
"Estate" means as to each Reorganizing Debtor or Heber Debtor,
the estate which was created by the commencement of such Reorganizing Debtor or
Heber Debtor's Chapter 11 Case pursuant to section 541 of the Bankruptcy Code,
and shall be deemed to include, without limitation, any and all privileges of
such Reorganizing Debtor or Heber Debtor and all interests in property, whether
real, personal or mixed, rights, causes of action, avoidance powers or
extensions of time that such Reorganizing Debtor or Heber Debtor or such estate
shall have had effective as of the commencement of the Chapter 11 Case, or which
such estate acquired after the commencement of the Chapter 11 Case, whether by
virtue of section 544, 545, 546, 547, 548, 549 or 550 of the Bankruptcy Code or
otherwise.
"Estimated Recovery Value" means the estimated value of any
Distribution under this Reorganization Plan; provided, that with respect to
Distributions consisting of Reorganization Plan Notes, the Estimated Recovery
Value shall be determined based upon the face amount of such Reorganization Plan
Notes; and further, provided, that with respect to Distributions consisting of
Reorganization Plan Equity Securities and Warrants, the Estimated Recovery Value
shall be the valuation for any such Reorganization Plan Equity Securities and
Warrants set forth in the Disclosure Statement or as determined by the Court.
"Estimation Request" means a request for estimation of a Claim
in accordance with the Bankruptcy Code and Bankruptcy Rules.
"Excess Distributable Cash" means, if Distributable Cash is
equal to $60 million, an amount of Cash equal to ninety-seven and one half
percent (97.5%) of Free Cash in excess of Distributable Cash.
"Exit Costs" means the Cash costs for consummation of this
Reorganization Plan, to be either paid or reserved on or shortly after the
Effective Date pursuant to the terms hereof, including without limitation, (i)
all amounts required with respect to Distributions to holders of Allowed
Administrative Expense Claims, Allowed Convenience Claims, Allowed Elective
Convenience Claims to the extent the Reorganized Debtors elect to pay such
claims in Cash, if any, and funding of reserves with respect to Disputed Claims,
(ii) funding the Operating Reserve, (iii) payment of all costs and expenses
associated with the transactions contemplated hereunder, (iv) severance costs,
(v) establishment of tax reserves with respect to the Geothermal Sale, and (vi)
such other reserves as may be required under one or more of the Exit Financing
Agreements.
"Exit Financing Agreements" means the agreements providing for
new credit facilities, to be entered into on the Effective Date among the Exit
Financing Borrowers and the Persons identified therein as lenders, consisting of
the Reinstated L/C Facility, the New Revolver Facility, the New L/C Facility,
the New CPIH Funded Debt, the New CPIH Revolver Facility and the New High Yield
Indenture, each substantially in the form set forth in the Reorganization Plan
Supplement, and all collateral agreements executed in connection therewith.
"Exit Facility Agents" means Bank of America, N.A., as
Administrative Agent and Collateral Agent and Deutschebank A.G., New York
branch, as Document Agent, under certain of the Exit Financing Agreements.
"Exit Financing Borrowers" means Reorganized Covanta and each
other Reorganized Debtor [(other than the borrowers under the New CPIH Revolver
Facility, if any)], to the extent permissible under existing law and subject to
exceptions satisfactory to the Exit Facility Agents (including an exception for
any Reorganized Debtor precluded by virtue of valid and effective charter or
contractual restrictions from borrowing under the New Revolver Facility).
"Final Order" means an order or judgment of the Court, as
entered on the docket of the Court, that has not been reversed, stayed,
modified, or amended, and as to which: (a) the time to appeal, seek review or
rehearing or petition for certiorari under the Bankruptcy Rules has expired and
no timely filed appeal or petition for review, rehearing, remand or certiorari
is pending; or (b) any appeal taken or petition for certiorari filed has been
resolved by the highest Court to which the order or judgment was appealed or
from which certiorari was sought, provided, however, that the possibility that a
motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any
analogous rule under the Bankruptcy Rules or other rules governing procedure in
cases before the Court, may be filed with respect to such order or judgment
shall not cause such order or judgment not to be a Final Order.
"Free Cash" means the total amount of Cash held by the
Reorganizing Debtors on the Effective Date after consummation of the Geothermal
Sale and immediately prior to giving effect to the payment of Exit Costs or any
other Distributions or transactions contemplated by this Reorganization Plan;
provided, however that Free Cash does not include the Post-Confirmation Working
Capital or any other Cash as to which usage by the Reorganizing Debtors is
restricted in any manner pursuant to the terms of any applicable agreements to
which the Reorganized Debtors are party, including, without limitation, any
project financing or operating agreements.
"Geothermal Sale" means the sale by the Reorganizing Debtors
of certain assets related to the Heber Debtors' geothermal independent power
production business or the equity thereof pursuant to section 363 of the
Bankruptcy Code or through a plan of reorganization.
"Heber Debtors Intercompany Claim" means any Intercompany
Claim held by a Heber Debtor, but excluding any such Claim that would also be
included in the definition of Liquidating Debtors Intercompany Claim or
Reorganizing Debtors Intercompany Claim.
"Heber Secured Claim" means (i) any Secured Claim against a
Heber Reorganizing Debtor that is secured by a Lien on such Heber Reorganizing
Debtor's tangible or intangible assets [and (ii) any Claim against _________
based on a guarantee of a Secured Claim described in the preceding clause of
this definition]; provided, however, that Heber Secured Claims do not include
the Claims of the DIP Lenders, or Intercompany Claims.
"Heber Unsecured Claims" means all Unsecured Claims asserted
against any Heber Debtor.
"Impaired" means, when used with reference to an Allowed Claim
or an Allowed Equity Interest, a Claim or Equity Interest that is impaired
within the meaning of section 1124 of the Bankruptcy Code.
"Indenture Trustee" means Wells Fargo Bank Minnesota, National
Association, in its capacity as indenture trustee with respect to the 9.25%
Debentures.
"Initial Distribution" means the initial distribution of the
Secured Class 3 Total Distribution into separate Distributions for Subclass 3A
and Subclass 3B in accordance with Section 4.4(c)(I) of this Reorganization
Plan.
"Initial Petition Date" means April 1, 2002, the date upon
which the Reorganizing Debtors identified on Exhibit 3 hereto and the Heber
Debtors filed their respective orders for relief under Chapter 11 of the
Bankruptcy Code.
"Intercompany Claims" means all Claims against a Reorganizing
Debtor or Heber Debtor asserted by any Liquidating Debtor or any other
Reorganizing Debtor or Heber Debtor, including, without limitation, any (a)
preference actions, fraudulent conveyance actions, rights of setoff and other
claims or causes of action under sections 544, 547, 548, 549, 550 and 553 of the
Bankruptcy Code and other applicable bankruptcy or nonbankruptcy law, (b) claims
or causes of action arising out of illegal dividends or similar theories of
liability, (c) claims or causes of action based on piercing the corporate veil,
alter ego liability or similar legal or equitable theories of recovery arising
out of the ownership or operation of any of the Reorganizing Debtors or Heber
Debtors prior to the applicable Petition Date, (d) claims or causes of action
based on unjust enrichment, (e) claims or causes of action for breach of
fiduciary duty, mismanagement, malfeasance or, to the extent they are claims or
causes of action of any of the Reorganizing Debtors or Heber Debtors, fraud, (f)
claims or causes of action arising out of any contracts or other agreements
between or among any of the Reorganizing Debtors or Heber Debtors and any
Liquidating Debtor or any other Reorganizing Debtor or Heber Debtors that are
rejected, and (g) any other claims or causes of action arising out of or related
in any way to the Chapter 11 Cases, the Liquidation Plan or this Reorganization
Plan that are based on an injury that affects or affected the shareholders or
creditors of any of the Liquidating Debtors, Heber Debtors or Reorganizing
Debtors generally.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of March 14, 2001, among Covanta and its affiliates named therein and
the Prepetition Lenders, as it has been or may be amended, supplemented or
otherwise modified.
"Intermediate Holding Company Debtor" means the following
Reorganizing Debtors: [to come].
"Lien" has the meaning set forth in section 101(37) of the
Bankruptcy Code.
"Liquidating Debtors" means those debtors identified on
Exhibit 2 attached hereto that are being liquidated pursuant to the Liquidation
Plan.
"Liquidating Debtors Intercompany Claim" means any
Intercompany Claim held by a Liquidating Debtor or any of its direct or indirect
subsidiaries.
"Liquidation Plan" means the Joint Plan of Liquidation of
Ogden New York Services, Inc., et al. under Chapter 11 of the Bankruptcy Code
(including all exhibits, supplements, appendices and schedules annexed thereto),
dated September__, 2003, as the same may be amended, modified or supplemented
from time to time.
"Loss Sharing Litigation" means docket item number 595 in the
Chapter 11 Cases captioned as The Motion of Canadian Imperial Bank of Commerce,
as agent for the Canadian Loss Sharing Lenders, for an Order (1) Interpreting
and Enforcing the Final DIP Order and (2) Confirming the Amount of the Tranche C
Loans to the Debtors, dated June 25, 2002, pending before the Court.
"New CPIH Funded Debt" means the new debt to be issued, in the
form of a term loan, by Reorganized CPIH as part of the Exit Financing
Agreements on the Effective Date in the aggregate principal amount of $80
million, to be secured by a second priority lien on substantially all of
Reorganized CPIH's and its domestic subsidiaries' assets.
"New CPIH Revolver Facility" means the new revolving line of
credit facility, to be entered into as part of the Exit Financing Agreements as
an obligation of Reorganized CPIH and its domestic subsidiaries, guaranteed and
secured by the Domestic Reorganizing Debtors, and secured by a first priority
lien on substantially all of Reorganized CPIH's and its domestic subsidiaries'
assets, junior only to duly perfected and unavoidable prior liens, providing for
a revolving credit line of up to $10 million dollars for purposes of supporting
the business operations of CPIH and its domestic subsidiaries, as more
particularly described therein.
"New Facility Lenders" means the Persons, other than any of
the Additional New Lenders, named as lenders with respect to the New Revolver
Facility, the New CPIH Revolver Facility or the New L/C Facility.
"New High Yield Indenture" means the indenture to be entered
into as part of the Exit Financing Agreements providing for the issuance by
Reorganized Covanta of the New High Yield Secured Notes at discount in the
aggregate amount of [$200 million, which liability will grow to $225 million at
maturity.]
"New High Yield Secured Notes" means the new notes, secured by
a third priority lien on the Post-Confirmation Collateral, to be issued by
Reorganized Covanta and guaranteed by the Domestic Reorganizing Debtors on the
Effective Date pursuant to the New High Yield Indenture in accordance with the
terms of this Reorganization Plan substantially in the form of the New High
Yield Secured Note contained in the Reorganization Plan Supplement.
"New Lender Warrants" means Reorganization Plan Warrants
issued by Reorganized Covanta pursuant to this Reorganization Plan representing
[______ percent (___%)] of Reorganized Covanta's Common Stock on a fully diluted
basis as of the Effective Date.
"New L/C Facility" means the new letter of credit facility, to
be entered into as part of the Exit Financing Agreements, as an obligation of
the Domestic Reorganizing Debtors, secured by a first priority lien on the
Post-Confirmation Collateral and the assets of CPIH and its subsidiaries, junior
only to duly perfected and unavoidable prior liens, providing for commitments
for issuance of certain letters of credit of up to [$87.0] million for purposes
of supporting the Domestic Reorganizing Debtors business operations, as more
particularly described therein.
"New Revolver Facility" means the new revolving line of credit
facility, to be entered into as part of the Exit Financing Agreements, as an
obligation of the Domestic Reorganizing Debtors, secured by a first priority
lien on the Post-Confirmation Collateral and the assets of CPIH and its
subsidiaries, junior only to duly perfected and unavoidable prior liens,
providing for a revolving credit line of up to [$40] million for purposes of
financing the business operations of the Domestic Reorganizing Debtors, as more
particularly described therein.
"Non-Participating Lender" means any holder of an Allowed
Class 3 Claim that is not a New Facility Lender or one of the Additional New
Lenders.
"Non-Priority Subclass 3A Claims" means all Secured Bank
Claims other than Priority Bank Claims.
"9.25% Debenture Claim" means any Claim that arises out of, or
is attributable to, ownership of the 9.25 % Debentures.
"9.25% Debenture Holders Subclass 3B Distribution" means the
aggregate Distribution to holders of Allowed Subclass 3B Claims pursuant to this
Reorganization Plan.
"9.25% Debentures" means those certain debentures issued by
Ogden Corporation (now known as Covanta) in the aggregate principal amount of
$100,000,000 due in March 2022 and bearing an interest rate of 9.25 % per annum
(Cusip No. 676346AF6).
"9.25% Debentures Adversary Proceeding" means adversary
proceeding No. 02-03004 captioned as The Official Committee of Unsecured
Creditors v. Wells Fargo Bank Minnesota, National Association, et al., pending
before the Court.
"9.25% Deficiency Claim" means an amount equal to (X) the
Allowed amount of 9.25% Debenture Claims, currently estimated at $105 million
including accrued but unpaid fees and interest minus (Y) as of the Effective
Date, the Estimated Recovery Value of the 9.25% Debenture Holders Subclass 3B
Distribution, such amount to be determined by agreement of the holders of the
9.25% Debentures, the Reorganizing Debtors and the Committee, or by order of the
Court.
"Old Covanta Stock" means the pre-confirmation common stock,
options, warrants, preferred stock or any other Equity Interest of Covanta,
whether issued and outstanding or held in treasury.
"Operating Company Reorganizing Debtor" means any of the
Reorganizing Debtors other than Covanta, Covanta Energy Americas and the
Intermediate Holding Company Debtors.
"Operating Company Unsecured Claims" means all Unsecured
Claims asserted against any Operating Company Reorganizing Debtor; provided,
however, that the term Operating Company Unsecured Claims shall not include any
Convenience Claim.
"Operating Reserve" shall have the meaning assigned to such
term in the Liquidation Plan.
"Operating Reserve Deficiency Amount" means the amount of the
Operating Reserve Deficiency (as defined in Section 6.1(a) of the Liquidation
Plan), if any, that shall be transferred by the Reorganizing Debtors to the
Operating Reserve.
"Person" has the meaning provided in section 101(41) of the
Bankruptcy Code and includes, without limitation, any individual, corporation,
partnership, association, indenture trustee, organization, joint stock company,
joint venture, estate, trust, governmental unit or any political subdivision
thereof, the Committee, Indenture Trustee, Equity Interest holders, holders of
Claims, current or former employees of any Reorganizing Debtor, or any other
entity.
"Petition Date" means, collectively, the Initial Petition Date
and the Subsequent Petition Date.
"Plan Documents" means the documents to be executed,
delivered, assumed or performed in conjunction with the consummation of this
Reorganization Plan on the Effective Date, including, without limitation, the
amended organizational documents for Reorganized Covanta and the Exit Financing
Agreements and shall be treated as if incorporated herein.
"Post-Confirmation Collateral" means all assets of the
Domestic Reorganizing Debtors, including the common stock of CPIH, to the extent
such assets may be subject to a Lien, with respect to the Exit Financing
Borrowers' obligations under the Exit Financing Agreements without violation of
any applicable law or the terms of any contracts that have been assumed or
reinstated by the Reorganized Debtors unless otherwise waived or consented to.
"Post-Confirmation Working Capital" means an amount of Cash
equal to $10 million to be retained on the Effective Date by the Domestic
Reorganizing Debtors.
"Preference Claim" means a claim, right or cause of action
accruing under section 547 of the Bankruptcy Code, or under section 550 of the
Bankruptcy Code to recover a transfer avoided under section 547 of the
Bankruptcy Code, and which may be asserted by or on behalf of a Reorganizing
Debtor or Heber Debtor.
"Preferred Distribution" shall have the meaning assigned to
that term under the Intercreditor Agreement.
"Prepetition Credit Agreement" means the Revolving Credit and
Participation Agreement dated as of March 14, 2001, among Covanta, certain other
Reorganizing Debtors, certain other Liquidating Debtors and the Prepetition
Lenders and the Security Agreement dated as of March 14, 2001, both as they have
been or may be amended, supplemented or otherwise modified from time to time.
"Prepetition Lenders" means the Persons identified as lenders
under the Prepetition Credit Agreement, together with their successors and
permitted assigns.
"Prepetition Lender Deficiency Claim" means an amount equal to
(X) the Allowed amount of the claims of the Prepetition Lenders, currently
estimated at $434 million including accrued but unpaid fees and interest minus
(Y) as of the Effective Date, the Estimated Recovery Value of the Subclass 3A
Recovery, such amount to be determined by agreement of the Prepetition Lenders,
the Reorganizing Debtors and the Committee, or by order of the Court.
"Priority Bank Claims" means all Secured Bank Claims that are
entitled to a Preferred Distribution or Ratable Paydown pursuant to the
Intercreditor Agreement.
"Priority Bank Lenders" means the Prepetition Lenders that
hold Priority Bank Claims.
"Priority Non-Tax Claim" means any Claim entitled to priority
pursuant to section 507(a) of the Bankruptcy Code, other than: (a) an
Administrative Expense Claim or (b) a Priority Tax Claim.
"Priority Tax Claim" means any Claim of a Government Unit of
the kind entitled to priority in payment as specified in sections 502(i) and
507(a)(8) of the Bankruptcy Code.
"Pro Rata Class Share" means the proportion that the amount of
any Claim bears to the aggregate amount of such Claim and all other Claims in
the same Class entitled to distributions from the same source of Cash,
Reorganization Plan Notes or Reorganization Plan Equity Securities and Warrants,
including Disputed Claims.
"Pro Rata Subclass Share" means the proportion that the amount
of any Claim bears to the aggregate amount of such Claim and all other Claims in
the same Subclass entitled to Distributions from the same source of Cash,
Reorganization Plan Notes or Reorganization Plan Equity Securities and Warrants,
including Disputed Claims.
"Project Debt Claim" means (i) any Secured Claim against an
Operating Company Reorganizing Debtor that is secured by a Lien on such
Operating Company Reorganizing Debtor's tangible or intangible assets, and (ii)
any Claim against Covanta based on a guarantee of a Secured Claim described in
the preceding clause of this definition; provided, however, that Project Debt
Claims do not include the Claims of the Prepetition Lenders, the DIP Lenders,
the holders of the 9.25% Debentures or Intercompany Claims.
"Ratable Paydown" shall have the meaning assigned to that term
under the Intercreditor Agreement.
"Reinstated L/C Facility" means the letter of credit facility,
secured by a second priority lien on the Post-Confirmation Collateral, to be
reinstated as part of the Exit Financing Agreements providing for letters of
credit in the aggregate face amount of up to $176 million for purposes of
continuing or replacing certain unfunded letters of credit issued and
outstanding as of the Effective Date under Tranche B of the DIP Financing
Facility and for funding draws with respect thereto.
"Rejecting Debtors' Schedule of Assumed Contracts and Leases"
means a schedule of the executory contracts and unexpired leases to which each
of the Rejecting Debtors (as defined in Section 9.1(a) of this Reorganization
Plan) is a party that will be assumed under Article IX of the Plan, which
schedule shall be filed and served on the relevant parties no less than
twenty-three (23) days prior to the Confirmation Hearing.
"Released Party" means each Reorganizing Debtor and each Heber
Debtor, and any officer, director or employee of any Reorganizing Debtor and any
Heber Debtor but only if and to the extent, in each case, such party served in
such capacity on or after the applicable Petition Date.
"Reorganization Plan" means this chapter 11 plan of
reorganization, including without limitation, all documents referenced herein
and all exhibits, supplements, appendices and schedules hereto, either in its
present form or as the same may be altered, amended or modified from time to
time.
"Reorganization Plan Equity Securities and Warrants" means the
Reorganized CPIH Preferred Stock, Reorganized Covanta Common Stock and
Reorganization Plan Warrants.
"Reorganization Plan Notes" means the New High Yield Secured
Notes, the Reorganization Plan Unsecured Notes and the New CPIH Funded Debt.
"Reorganization Plan Supplement" means a supplemental appendix
to this Reorganization Plan that will contain the Plan Documents in
substantially completed form, to be filed no later than five (5) days prior to
the last date by which votes to accept or reject this Reorganization Plan must
be submitted. Documents to be included in the Reorganization Plan Supplement
will be posted at www.covantaenergy.com as they become available.
"Reorganization Plan Unsecured Notes" means the new
subordinated unsecured notes to be issued by Reorganized Covanta on the
Effective Date in accordance with the terms of this Reorganization Plan in an
aggregate principal amount equal to the aggregate amount of Allowed Class 4
Claims and Allowed Class 5 Claims, substantially in the form of the
Reorganization Plan Unsecured Note contained in the Reorganization Plan
Supplement.
"Reorganization Plan Warrants" means the warrants exercisable
for [forty nine percent (49%)] of Reorganized Covanta Common Stock to be issued
by Reorganized Covanta on the Effective Date in accordance with the terms of
this Reorganization Plan, substantially in the form of the Reorganization Plan
Warrant contained in the Reorganization Plan Supplement.
"Reorganized Covanta" means Covanta on and after the Effective
Date.
"Reorganized Covanta Common Stock" means the shares of common
stock of Reorganized Covanta, authorized under Section 6.3 of this
Reorganization Plan and under the amended and restated certificate of
incorporation for Reorganized Covanta. The number of issued and outstanding
shares of Common Stock as of the Effective Date shall be [______], and the
number of authorized shares shall be [_______].
"Reorganized Covanta Secured Claims" means the Secured Bank
Claims and Secured 9.25% Debenture Claims.
"Reorganized CPIH Preferred Stock" means the shares of
preferred stock of CPIH, authorized under Section 6.3 of this Reorganization
Plan and under the amended and restated certificate of incorporation for
Reorganized CPIH with an aggregate liquidation preference of $30 million and
with voting and dividend rights, as set forth substantially in the form of the
Reorganization Plan CPIH Preferred Stock certificate of designation contained in
the Reorganization Plan Supplement. The number of issued and outstanding shares
of CPIH Preferred Stock as of the Effective Date shall be [1,000,000], and the
number of authorized shares shall be [1,000,000].
"Reorganized Debtor" means each Reorganizing Debtor, on or
after the Effective Date.
"Reorganized Heber Debtor" means each Heber Debtor, on or
after the Effective Date.
"Reorganized Senior Heber Equity Interests" means the new
Equity Interests in Covanta SIGC Energy I, Covanta SIGC Energy II, Heber Field
Company and Heber Geothermal Company, authorized under Section 6.3 of this
Reorganization Plan to be issued on the Effective Date.
"Reorganizing Debtors" has the meaning ascribed to such term
on the first page of this Reorganization Plan (each of the Reorganizing Debtors
is individually referred to herein as a Reorganizing Debtor). A list of the
Reorganizing Debtors is attached hereto as Exhibit 1.
"Reorganizing Debtors Intercompany Claim" means any
Intercompany Claim held by a Reorganizing Debtor, but excluding any such Claims
that would also be included in the definition of Liquidating Debtors
Intercompany Claim or Heber Debtors Intercompany Claim.
"Retained Professional" means the professionals retained in
these jointly administered Chapter 11 Cases by the Reorganizing Debtors, the
Heber Debtors or the Committee pursuant to sections 327, 328 or 1103 of the
Bankruptcy Code pursuant to Final Orders of the Court.
"Schedules" means the schedules of assets and liabilities and
the statement of financial affairs filed by the Reorganizing Debtors as required
by sections 521 and 1106(a)(2) of the Bankruptcy Code and Bankruptcy Rule 1007,
as they have been or may be supplemented or amended from time to time.
"Secured Bank Claims" means the Secured Claims of the
Prepetition Lenders arising under (i) the Prepetition Credit Agreement and
related collateral documents, and (ii) the Intercreditor Agreement, including
the Priority Bank Claims and the Non-Priority Subclass 3A Claims.
"Secured Claim" means, pursuant to section 506 of the
Bankruptcy Code, that portion of a Claim that is secured by a valid, perfected
and enforceable security interest, lien, mortgage or other encumbrance, that is
not subject to avoidance under applicable bankruptcy or non-bankruptcy law, in
or upon any right, title or interest of any of the Reorganizing Debtors in and
to property of the Estates, to the extent of the value of the holder's interest
in such property as of the relevant determination date. The defined term Secured
Claim includes any Claim that is (i) subject to an offset right under applicable
law, and (ii) a secured claim against any of the Reorganizing Debtors or Heber
Debtors pursuant to sections 506(a) and 553 of the Bankruptcy Code. Such defined
term shall not include for voting or Distribution purposes any such Claim that
has been or will be paid in connection with the cure of defaults under an
assumed executory contract or unexpired lease under section 365 of the
Bankruptcy Code. A Secured Claim shall not include any portion of the Claim that
exceeds that value of the interest in property of the Estate securing such
Claim.
"Secured Class 3 Total Distribution" means the total
Distribution to Allowed Class 3 Claims (including Allowed Subclass 3A Claims and
Allowed Subclass 3B Claims) under this Reorganization Plan, consisting of: (i)
Distributable Cash, (ii) Excess Distributable Cash (if any), (iii) the New High
Yield Secured Notes, (iv) New CPIH Funded Debt, (v) Reorganized CPIH Preferred
Stock, (vi) the New Lender Warrants, and (vii) [Additional Class 3 Warrants].
"Secured Value Distribution" means the portion of the Secured
Class 3 Total Distribution made to holders of Allowed Subclass 3A Claims or
Allowed Subclass 3B Claims in the form of either Distributable Cash or New High
Yield Secured Notes.
["Senior Unsecured Claims" means all Allowed Class 6 Claims
that are entitled to enforcement of the subordination provisions contained in
the indenture for the Convertible Subordinated Bonds.]
"Specified Personnel" means any individual serving as a
present or former officer, director or employee of the Reorganizing Debtors who,
prior to the Confirmation Date, was entitled to indemnification from one of the
Reorganizing Debtors or for whom such indemnification was permitted under
applicable law.
"Subclass 3A Percentage" means the percentage determined by
dividing (i) the Allowed Subclass 3A Secured Claim Amount by (ii) the Total
Allowed Class 3 Secured Claim Amount.
"Subclass 3A Recovery" means a Distribution equal to the
Subclass 3A Percentage of the Secured Class 3 Total Distribution.
"Subclass 3B Percentage" means the percentage determined by
dividing (i) the Allowed Subclass 3B Secured Claim Amount by (ii) the Total
Allowed Class 3 Secured Claim Amount.
"Subclass 3B Recovery" means a Distribution equal to the
Subclass 3B Percentage of the Secured Class 3 Total Distribution.
"Subordinated Claims" means (a) Claims for fines, penalties or
forfeiture or for multiple, exemplary or punitive damages, to the extent that
such fines, penalties, forfeitures or damages are not compensation for actual
pecuniary loss suffered by the holders of such claims, (b) Claims subject to
subordination under section 510(b) of the Bankruptcy Code, including without
limitation claims for rescission, damages or reimbursement, indemnification or
contribution arising out of a purchase or sale of any security of any of the
Reorganizing Debtors or Liquidating Debtors, and (c) Claims subject to equitable
subordination under section 510(c) of the Bankruptcy Code.
"Subsequent Petition Date" means June 6, 2003, the date upon
which the Reorganizing Debtors identified on Schedule 3 hereto filed their
respective orders for relief under chapter 11 of the Bankruptcy Code.
"Subsidiary Debtors" means the Reorganizing Debtors other than
Covanta, Covanta Huntington and Covanta Onondaga.
"Substantial Contribution Claims" means the claim by any
creditor or party in interest for reasonable compensation for services rendered
in these Chapter 11 Cases pursuant to section 503(b)(3), (4) or (5) of the
Bankruptcy Code.
"Total Allowed Class 3 Secured Claim Amount" means the sum of
(i) Allowed Subclass 3A Secured Claim Amount and (ii) Allowed Subclass 3B
Secured Claim Amount.
"Unimpaired" means, when used with reference to a Claim or
Equity Interest, a Claim or Equity Interest that is not Impaired.
"United States Trustee" means the Office of the United States
Trustee for the Southern District of New York.
"United States Trustee Claims" means all United States Trustee
Fees accrued through the close of the Chapter 11 Cases.
"United States Trustee Fees" means all fees and charges due
from the Reorganizing Debtors or Heber Debtors to the United States Trustee
pursuant to section 1930 of Title 28 of the United States Code.
"Unsecured Claims" means any Claim (including, without
limitation, (a) Claims arising from the rejection of executory contracts and
unexpired leases and (b) any Deficiency Claims) that is not a Secured Claim,
Administrative Expense Claim, Priority Tax Claim, Priority Non-Tax Claim,
Project Debt Claim, Reorganized Covanta Secured Claim, Intercompany Company
Claim or Subordinated Claim.
ARTICLE II
TREATMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Non-Classification. As provided in section 1123(a)(1) of the
Bankruptcy Code, Administrative Expense Claims and Priority Tax Claims against
the Reorganizing Debtors and Heber Debtors are not classified for purposes of
voting on or receiving Distributions under this Reorganization Plan. All such
Claims are instead treated separately pursuant to the terms set forth in this
Article II.
2.2 Administrative Expense Claims. Except to the extent that the
applicable Reorganizing Debtor or Heber Debtor and a holder of an Allowed
Administrative Expense Claim agree to less favorable treatment and except as set
forth in Sections 2.3 and 2.5 of this Reorganization Plan, each Reorganizing
Debtor and Heber Debtor shall pay to each holder of an Allowed Administrative
Expense Claim against such Reorganizing Debtor or Heber Debtor, in full
satisfaction, settlement, release and discharge of and in exchange for such
Allowed Administrative Expense Claim, Cash in an amount equal to such Allowed
Administrative Expense Claim on the Distribution Date; provided that any such
liabilities not incurred in the ordinary course of business were approved and
authorized by a Final Order of the Court; provided, however, that Allowed
Administrative Expense Claims representing liabilities incurred in the ordinary
course of business by such Reorganizing Debtor or Heber Debtor, as a debtor in
possession, or liabilities arising under loans or advances to or other
obligations incurred by such Reorganizing Debtor or Heber Debtor, as debtor in
possession, whether or not incurred in the ordinary course of business, shall be
paid by such Reorganizing Debtor or Heber Debtor in the ordinary course of
business, consistent with past practice and in accordance with the terms and
subject to the conditions of any agreements governing, instruments evidencing,
or other documents relating to such transactions. To the extent that the
Administrative Expense Claim Bar Date applies, failure to file a timely request
for payment of an Administrative Expense Claim prior to the Administrative
Expense Claim Bar Date shall result in the Administrative Expense Claim being
forever barred and discharged.
2.3 Compensation and Reimbursement Claims. (a) Except with respect to
Substantial Contribution Claims, which are subject to Section 2.3(b), all (i)
Retained Professionals and (ii) Persons employed by the Reorganizing Debtors or
Heber Debtors or serving as independent contractors to the Reorganizing Debtors
in connection with their reorganization efforts that are seeking an award by the
Court of compensation for services rendered or reimbursement of expenses
incurred through and including the Effective Date under subsections 503(b)(2),
503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code shall file and serve on
counsel for the Reorganizing Debtors and Heber Debtors and as otherwise required
by the Court and Bankruptcy Code their respective final applications for
allowance of compensation for services rendered and reimbursement of expenses
incurred on or before the date that is forty-five (45) days after the Effective
Date, subject to prior written notice to counsel to the DIP Agents. The
Reorganized Debtors and Reorganized Heber Debtors shall pay in full on the
Distribution Date such Claims in such amounts as are Allowed by the Court, after
notice and hearing, or upon such other less favorable terms as may be mutually
agreed upon between the holder of such an Allowed Administrative Expense Claim
and the Reorganizing Debtors and Heber Debtors or, on and after the Effective
Date, the Reorganized Debtors and Reorganized Heber Debtors and, in each such
case, approved by the Court after notice and hearing. Any request for payment of
an Administrative Expense Claim of the type specified in this Section 2.3(a),
which is not filed by the applicable deadline set forth above, shall be barred.
(b) Any Person who requests compensation or expense
reimbursement for a Substantial Contribution Claim in the Chapter 11 Cases must
file an application with the clerk of the Court, on or before the Administrative
Expense Claim Bar Date, and serve such application on counsel for the
Reorganized Debtors and Reorganized Heber Debtors and as otherwise required by
the Court and the Bankruptcy Code on or before such date, or be forever barred
from seeking compensation or expense reimbursement for such Substantial
Contribution Claim.
(c) All other requests for payment of an Administrative
Expense Claim (other than as set forth in clauses (a) and (b) of this Section
2.3 above) that are subject to the Administrative Expense Claim Bar Date must be
filed with the Court and served on counsel for the Reorganizing Debtors and
Heber Debtors and as otherwise required by the Court and Bankruptcy Code on or
before the Administrative Expense Claim Bar Date. Unless the Reorganizing
Debtors, Reorganized Debtors, Heber Debtors, Reorganized Heber Debtors or any
other party in interest in the Chapter 11 Cases objects to an Administrative
Expense Claim by the Claims Objection Deadline, such Administrative Expense
Claim shall be deemed Allowed in the amount filed. In the event that the
Reorganizing Debtors, Reorganized Debtors, Heber Debtors, Reorganized Heber
Debtors or any other party in interest in the Chapter 11 Cases objects to an
Administrative Expense Claim, the Court shall determine the Allowed amount of
such Administrative Expense Claim. Notwithstanding the foregoing, no request for
payment of an Administrative Expense Claim need be filed with respect to an
Administrative Expense Claim incurred and payable by the Reorganizing Debtors or
Heber Debtors in the ordinary course of business.
(d) Under no circumstances will the deadlines set forth above
be extended by order of the Court or otherwise. Any holders of Administrative
Expense Claims who are required to file a Claim or request for payment of such
Claims or expenses and who do not file such Claims or requests by the applicable
dates set forth in this Section 2.3 shall be forever barred from asserting such
Claims or expenses against the Reorganizing Debtors, the Reorganized Debtors,
the Heber Debtors, the Reorganized Heber Debtors, or any property of the
Reorganized Debtors, the Reorganizing Debtors, the Heber Debtors and the
Reorganized Heber Debtors, and from receiving any Distributions under this
Reorganization Plan with respect to such Claims.
2.4 Priority Tax Claims. Subject to the consent of [the requisite New
Facility Lenders and Additional New Lenders], each holder of an Allowed Priority
Tax Claim will receive in full satisfaction, settlement, release, and discharge
of and in exchange for such Allowed Priority Tax Claim, Cash equal to the unpaid
portion of such Allowed Priority Tax Claim on or as soon as practical after the
later of: (i) thirty (30) days after the Effective Date, or (ii) thirty (30)
days after the date on which such Priority Tax Claim becomes Allowed; provided,
however, that at the option of the Reorganized Debtors or Reorganized Heber
Debtors, a Reorganized Debtor or Reorganized Heber Debtor may pay any or all
Allowed Priority Tax Claims over a period not exceeding six (6) years after the
date of assessment of the Priority Tax Claims as provided in subsection
1129(a)(9)(C) of the Bankruptcy Code. If a Reorganized Debtor or Reorganized
Heber Debtor elects this option as to any Allowed Priority Tax Claim, then the
Reorganized Debtor or Reorganized Heber Debtor shall make payment of simple
interest on the unpaid portion of such Claim semiannually without penalty of any
kind, at the statutory rate of interest provided for such taxes under applicable
nonbankruptcy law, with the first interest payment due on the latest of: (i) six
(6) months after the Effective Date, (ii) six (6) months after the date on which
such Priority Tax Claim becomes an Allowed Claim, or (iii) such longer time as
may be agreed to by the holder of such Priority Tax Claim and the Reorganized
Debtor or Reorganized Heber Debtor.
2.5 DIP Financing Facility Claims. On the Effective Date, the
Reorganizing Debtors shall pay all funded amounts and additional amounts
outstanding under the DIP Financing Facility and all commitments thereunder
shall automatically and irrevocably terminate; provided, however, that on the
Effective Date, all outstanding and unfunded letters of credit issued under
Tranche A of the DIP Financing Facility shall be replaced by letters of credit
to be issued under the New Revolver Facility and, subject to acceptance by the
requisite number of Tranche B DIP Lenders in accordance with section 2.13 of the
DIP Financing Facility, all outstanding and unfunded letters of credit issued
under Tranche B of the DIP Financing Facility shall be replaced or otherwise
continued by letters of credit to be issued under the Reinstated L/C Facility.
Once all such payments have been received in Cash by the DIP Lenders and all
commitments thereunder have been terminated and such letters of credit have been
issued under the New Revolver Facility or the Reinstated L/C Facility, the DIP
Financing Facility shall be terminated with respect to the Reorganizing Debtors
(subject in all respects to any carve-out approved by the Court in the Final
Order approving the DIP Financing Facility and any other terms of the DIP
Financing Facility and the Final Order that by their express terms survive the
termination of the DIP Financing Facility), and the DIP Lenders shall take all
necessary action to confirm the removal of any liens on the properties of the
applicable Reorganizing Debtors securing the DIP Financing Facility at the sole
cost of the Reorganized Debtors. To the extent that Claims arising under Tranche
B of the DIP Financing Facility will not be paid in full in Cash as a result of
reinstatement and continuation of such letters of credit under the Reinstated
L/C Facility, acceptance of such treatment in full satisfaction of their Allowed
Administrative Expense Claim by the requisite DIP Lenders as provided under
section 2.13 of the DIP Financing Facility shall be binding on all DIP Lenders.
On the Effective Date applicable to the Heber Debtors,
regardless of the amounts outstanding under the DIP Financing Facility, the DIP
Financing Facility shall terminate with respect to the Heber Debtors and the DIP
Lenders shall release the Heber Debtors from any claims thereunder and security
interests granted in support of the DIP Financing Facility over Equity Interests
in, and assets of, the Heber Debtors; provided, however, that such releases
shall be contingent upon the receipt by the DIP Lenders of the proceeds of the
sale of the Heber Debtors or their assets to the extent of the funded amounts
and additional amounts outstanding under the DIP Financing Facility.
ARTICLE III
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
3.1 General Rules of Classification. This Reorganization Plan
constitutes a Joint Reorganization Plan of the Reorganizing Debtors and the
Heber Debtors. In accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Expense Claims and Priority Tax Claims, as described in Article
II, have not been classified and thus are excluded from the Classes described
below. The classification of Claims and Equity Interests and implementation of
the settlements set forth below shall be applicable for all purposes, including
voting, confirmation, and distribution pursuant to the Reorganization Plan. As
to each Reorganizing Debtor and Heber Debtor, a Claim or Equity Interest shall
be deemed classified in a particular Class or Subclass only to the extent that
the Claim or Equity Interest qualifies within the description of that Class or
Subclass and shall be deemed classified in a different Class or Subclass to the
extent that any remainder of the Claim or Equity Interest qualifies within the
description of such different Class or Subclass. A Claim or Interest is in a
particular Class or Subclass only to the extent that such Claim or Interest is
Allowed in that Class or Subclass and has not been paid or otherwise settled
prior to the Effective Date.
ARTICLE IV
TREATMENT OF CLAIMS AND EQUITY INTERESTS
The following is a designation of the treatment to be
accorded, with respect to each Reorganizing Debtor and each Heber Debtor, to
each Class of Claims and Equity Interests denominated in this Reorganization
Plan.
As to each Reorganizing Debtor and each Heber Debtor, the
treatment of and consideration to be provided on account of Claims and Equity
Interests pursuant to the Reorganization Plan shall be in full settlement,
release and discharge of such Claims and Equity Interests; provided, that such
discharge shall not affect the liability of any other entity to, or the property
of any other entity encumbered to secure payment to, the holder of any such
Claim or Equity Interest, except as otherwise provided in the Reorganization
Plan; and provided, further, that such discharge shall not encompass the
Reorganizing Debtors' or Heber Debtors' obligations under this Reorganization
Plan or the Liquidating Trustee's obligations under the Liquidating Plan.
No Claim shall entitle the holder thereof to any Distribution
pursuant to this Reorganization Plan unless, and only to the extent that, such
Claim is an Allowed Claim. All Distributions on account of Allowed Claims shall
be made on the applicable Distribution Date.
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Class Claims Status Voting Right
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1 Allowed Priority Non-Tax Claims Unimpaired Deemed to Accept
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2 Allowed Project Debt Claims Unimpaired Deemed to Accept
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2H Allowed Heber Secured Claims Unimpaired Deemed to Accept
- --------------------------------------------------------------------------------------------
3 Allowed Reorganized Covanta Impaired Entitled to Vote
Secured Claims
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4 Allowed Operating Company Impaired Entitled to Vote
Unsecured Claims
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5 Allowed Covanta Energy America Impaired Entitled to Vote
Unsecured Claims
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6 Allowed Covanta Unsecured Claims Impaired Entitled to Vote
- --------------------------------------------------------------------------------------------
7 Allowed Heber Unsecured Claims Unimpaired Deemed to Accept
- --------------------------------------------------------------------------------------------
8 Allowed Convenience Claims Impaired Entitled to Vote
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9 Intercompany Claims Impaired Deemed to Reject
- --------------------------------------------------------------------------------------------
10 Subordinated Claims Impaired Deemed to Reject
- --------------------------------------------------------------------------------------------
11 Equity Interests in Subsidiary Impaired Deemed to Reject
Debtors
- --------------------------------------------------------------------------------------------
12 Equity Interests in Covanta Unimpaired Deemed to Accept
Huntington, Covanta Onondaga and
DSS Environmental
- --------------------------------------------------------------------------------------------
13 Old Covanta Stock Equity Interests Impaired Deemed to Reject
- --------------------------------------------------------------------------------------------
14 Equity Interests in Heber Debtors Impaired Deemed to Reject
- --------------------------------------------------------------------------------------------
4.1 Class 1 - Allowed Priority Non-Tax Claims.
a. Classification: Class 1 consists of all Allowed Priority
Non-Tax Claims.
b. Treatment: Each holder of an Allowed Class 1 Claim shall
receive, in full settlement, release and discharge of its Class 1 Claim, either
(i) Cash, on the Distribution Date, in an amount equal to such Allowed Claim, or
(ii) such other less favorable terms as the Reorganizing Debtors or Reorganized
Debtors and the holder of an Allowed Priority Non-Tax Claim agree.
c. Voting: Class 1 Claims are Unimpaired, and the holders of
Allowed Class 1 Claims are not entitled to vote to accept or reject the
Reorganization Plan.
4.2 Class 2 - Allowed Project Debt Claims.
a. Classification: Class 2 consists of all Allowed Project
Debt Claims.
b. Treatment: On the Effective Date, the legal, equitable and
contractual rights of the holders of Allowed Class 2 Claims will be reinstated
in full satisfaction, release and discharge of their respective Class 2 Claims
and will remain unaltered under the Reorganization Plan, except as the
Reorganizing Debtors and the holders of Allowed Class 2 Claims may otherwise
agree or as such holders may otherwise consent. Notwithstanding the foregoing,
no contractual provisions or applicable law that would entitle the holder of an
Allowed Class 2 Claim to demand or receive payment of such Claim prior to the
stated maturity of such Claim, terminate any contractual relationship or take
such other enforcement action (as may be applicable) from and after the
occurrence of a default that occurred prior to the Effective Date shall be
enforceable against the Reorganized Debtors.
c. Voting: Class 2 Claims are Unimpaired, and the holders of
Allowed Class 2 Claims are not entitled to vote to accept or reject the
Reorganization Plan.
4.3 Class 2H - Allowed Heber Secured Claims.
a. Classification: Class 2H consists of all Allowed Heber
Secured Claims.
b. Treatment: On the Effective Date, to the extent such claims
are not paid in full on or prior to the Effective Date, the legal, equitable and
contractual rights of the holders of Allowed Class 2H Claims will be reinstated
in full satisfaction, release and discharge of their respective Class 2H Claims
and will remain unaltered under the Reorganization Plan, except as the Heber
Debtors and the holders of Allowed Class 2H Claims may otherwise agree or as
such holders may otherwise consent; provided, however, that that the assets of
the Heber Debtors subject to Liens, Claims and encumbrances of holders of
Allowed Class 2H Claims may be sold, subject to such Liens, Claims and
encumbrances, as part of the Geothermal Sale contemplated by this Reorganization
Plan, and provided further that to the extent an Allowed Class 2H Claim is paid
in full on or prior to the Effective Date, the Liens, Claims and encumbrances
securing such claim shall be released and discharged immediately upon such
payment in full. Notwithstanding the foregoing, no contractual provisions or
applicable law that would entitle the holder of an Allowed Class 2H Claim to
demand or receive payment of such Claim prior to the stated maturity of such
Claim, terminate any contractual relationship or take such other enforcement
action (as may be applicable) from and after the occurrence of a default that
occurred prior to the Effective Date shall be enforceable against the
Reorganized Heber Debtors.
c. Voting: Class 2H Claims are Unimpaired, and the holders of
Allowed Class 2H Claims are not entitled to vote to accept or reject the
Reorganization Plan.
4.4 Class 3 - Allowed Reorganized Covanta Secured Claims.
a. Classification: Class 3 consists of all Allowed Reorganized
Covanta Secured Claims. Class 3 is divided into two Subclasses for Distribution
purposes: Subclass 3A consists of the Allowed Secured Bank Claims and Subclass
3B consists of Allowed Secured 9.25% Debenture Claims.
b. Allowance: The aggregate amount of Allowed Secured Claims
in Subclass 3A and Subclass 3B shall be determined as set forth in accordance
with the definitions of the terms Allowed Subclass 3A Secured Claim Amount and
the Allowed Subclass 3B Secured Claim Amount, respectively.
c. Treatment: On the Distribution Date, holders of Allowed
Class 3 Claims shall receive the Secured Class 3 Total Distribution in full
settlement, release and discharge of their respective Allowed Class 3 Secured
Claims. The Secured Class 3 Total Distribution shall be divided between Subclass
3A and Subclass 3B as follows:
I. Pro Rata Distribution Between Subclass 3A and Subclass 3B:
The Secured Class 3 Total Distribution shall be subject to an Initial
Distribution between Subclass 3A and Subclass 3B, with each Subclass receiving
in the aggregate its Pro Rata Share of the Secured Class 3 Total Distribution
based upon the Allowed Subclass 3A Claim Amount and the Allowed Subclass 3B
Claim Amount, respectively; provided, however, that Distributable Cash shall be
included in the Initial Distribution to Subclass 3A or Subclass 3B only to the
extent that the Allowed Subclass 3A Claim Amount or Allowed Subclass 3B Claim
Amount relates to an Allowed Subclass 3A Claim or Subclass 3B Claim, as the case
may be, that is held by a New Facility Lender; and further, provided, that New
Lender Warrants shall be included in the Initial Distribution to Subclass 3A or
Subclass 3B only to the extent that the Allowed Subclass 3A Claim Amount or
Allowed Subclass 3B Claim Amount relates to an Allowed Subclass 3A Claim or
Subclass 3B Claim, as the case may be, that is held by one of the Additional New
Lenders.
II. Distribution Among Members of Subclass 3A: Immediately
after the Initial Distribution to Subclass 3A, the remaining Subclass 3A
Recovery shall be distributed among the holders of Subclass 3A Claims as
follows:
First, in full settlement, release and discharge of the
Allowed Priority Bank Claims, the Priority Bank Lenders shall
receive first, to the extent available as part of the Subclass
3A Recovery, Excess Distributable Cash in an amount equal to
the amount of such Allowed Priority Bank Claims and thereafter
New High Yield Secured Notes in a principal amount equal to
the remaining amount of such Allowed Priority Bank Claims;
Second, immediately after making the Distribution on account
of the Allowed Priority Bank Claims, in full settlement,
release and discharge of Non-Priority Subclass 3A Claims, the
holders of Allowed Non-Priority Subclass 3A Claims shall
receive a Pro Rata Subclass Share of the remaining Subclass 3A
Recovery; where such distribution shall consist of
Distributable Cash, New High Yield Secured Notes and New
Lender Warrants, which types of Distributions may be further
allocated depending on whether the holder of a Subclass 3A
Claim is a New Facility Lender, one of the Additional New
Lenders or a Non-Participating Lender.
Notwithstanding anything herein to the contrary, immediately
prior to any Distribution to holders of Subclass 3A Claims,
the settlement of the Loss Sharing Litigation as described in
Exhibit 4 annexed hereto shall be deemed effective and
implemented for purposes of Distributions hereunder.
III. Distribution Among Members of Subclass 3B: Immediately
after the Initial Distribution to Subclass 3B, the remaining Subclass 3B
Recovery shall be distributed among the holders of Subclass 3B as follows:
First, in full settlement, release and discharge of Allowed
Subclass 3B Claims, each holder of an Allowed Subclass 3B
Claim shall receive its Pro Rata Subclass Share of
Distributions of the Subclass 3B Recovery; provided, however,
that with respect to the Subclass 3B Recovery, (i) the New
Facility Lenders in Subclass 3B, if any, shall receive their
Secured Value Distribution first, to the extent available, in
the form of Distributable Cash and thereafter in the form of
New High Yield Secured Notes; and (ii) the members of the
Additional New Lenders in Subclass 3B shall receive their
Secured Value Distribution solely in the form of New High
Yield Secured Notes plus a Pro Rata Subclass Share of the New
Lender Warrants; and provided further that the
Non-Participating Lenders in Subclass 3B shall not receive any
Distributable Cash or any Distribution of New Lender Warrants.
Second, in the event that the parties to the 9.25% Debentures
Adversary Proceeding reach a settlement to their dispute, the
Distributions made to each [holder of an Allowed Subclass 3B
Claim] shall be subject to adjustment and modification in
accordance with the provisions of that settlement.
d. Voting: Class 3 Claims are Impaired, and the holders of
Allowed Claims in such Class are entitled to vote to accept or reject the
Reorganization Plan. The members of Subclasses 3A, and 3B shall vote together as
a single Class for purposes of accepting or rejecting this Reorganization Plan.
4.5 Class 4 - Allowed Operating Company Unsecured Claims.
a. Classification: Class 4 consists of all Allowed Operating
Company Unsecured Claims.
b. Treatment: On the Distribution Date, each holder of an
Allowed Class 4 Claim shall receive, in full settlement, release and discharge
of its Class 4 Claim, a Distribution of Reorganization Plan Unsecured Notes in
the aggregate principal amount equal to the amount of its Allowed Class 4 Claim.
With respect to Allowed Class 4 Claims for and to the extent which insurance is
available, such Class 4 Claims shall be paid in the ordinary course of the
Reorganizing Debtors' business to the extent of such insurance, when any such
Claim becomes an Allowed Claim and such insurance proceeds become available;
provided, however, that to the extent insurance is not available or is
insufficient, treatment of such Allowed Class 4 Claims shall be as otherwise
provided in this Section 4.5. In the event that the holder of an Allowed Class 4
Claim elects to be treated as an Elective Convenience Claim, then at the option
of the Reorganizing Debtors, each such holder of a Class 4 Claim shall be
entitled to receive either (A) payment in Cash, in an amount equal to the lesser
of $2,500 or 75% of such Allowed Class 4 Claim, or (B) the Reorganization Plan
Unsecured Notes that such holder would otherwise have been entitled to receive
for its Allowed Class 4 Claim pursuant to this Reorganization Plan if such
holder had not made such an election.
c. Voting: Class 4 Claims are Impaired and the holders of
Allowed Class 4 Claims are entitled to vote to accept or reject the
Reorganization Plan.
4.6 Class 5 - Allowed Covanta Energy Americas Unsecured Claims.
a. Classification: Class 5 consists of all Allowed Unsecured
Claims against Covanta Energy Americas.
b. Treatment: On the Distribution Date, each holder of an
Allowed Class 5 Claim shall receive, in full satisfaction, release and discharge
of its Class 5 Claim, a Distribution of Reorganization Plan Unsecured Notes in
the aggregate principal amount equal to the amount of its Allowed Class 5 Claim.
c. Voting: Class 5 Claims are Impaired and the holders of
Allowed Class 5 Claims are entitled to vote to accept or reject this
Reorganization Plan.
4.7 Class 6 - Allowed Covanta Unsecured Claims.
a. Classification: Class 6 consists of all Allowed Covanta
Unsecured Claims.
b. Treatment: On the Distribution Date, each holder of an
Allowed Class 6 Claim [(other than any Class 6 Claim consisting of a 9.25%
Deficiency Claim or a Prepetition Lender Deficiency Claim)] shall receive, in
full satisfaction, release and discharge of its Class 6 Claim, its Pro Rata
Class Share of the Distribution of ___________________. Additionally, in the
event that the parties to the 9.25% Debentures Adversary Proceeding reach a
settlement to their dispute, the Distribution made to each holder of an Allowed
Class 6 Claim (other than a Class 6 Claim consisting of a 9.25% Deficiency Claim
or a Repetition Lender Deficiency Claim) shall be subject to adjustment and
modification in accordance with the provisions of that settlement. With respect
to Allowed Class 6 Claims for and to the extent which insurance is available,
such Class 6 Claims shall be paid in the ordinary course of the Reorganizing
Debtors' business to the extent of such insurance, when any such Claim becomes
an Allowed Claim and such insurance proceeds become available; provided,
however, that to the extent insurance is not available or is insufficient,
treatment of such Allowed Class 6 Claims shall be as otherwise provided in this
Section 4.7.
c. [Enforcement of Subordination. In accordance with and in
enforcement of the subordination provisions with respect to the Convertible
Subordinated Bonds, all Distributions which the holders of Convertible
Subordinated Bond Claims would otherwise be entitled to receive under this
Reorganization Plan, shall be Distributed on a pro rata basis to the holders of
Allowed Senior Unsecured Claims.]
d. Voting: Class 6 Claims are Impaired and the holders Allowed
Class 6 Claims are entitled to vote to accept or reject this Reorganization
Plan.
4.8 Class 7 - Allowed Heber Unsecured Claims.
a. Classification: Class 7 consists of all Allowed Heber
Unsecured Claims.
b. Treatment: On the Distribution Date, each holder of an
Allowed Class 7 Claim shall receive, in full satisfaction, release and discharge
of its Class 7 Claim, a Cash payment equal to the full amount of its Allowed
Class 7 Claim.
c. Voting: Class 7 Claims are Unimpaired and the holders of
Allowed Class 7 Claims are not entitled to vote to accept or reject the
Reorganization Plan.
4.9 Class 8 - Allowed Convenience Claims.
a. Classification: Class 8 consists of all Allowed Convenience
Claims.
b. Treatment: On the Distribution Date, each holder of an
Allowed Class 8 Claim shall receive, in full satisfaction, release and discharge
of its Class 8 Claim, a payment in Cash, in an amount equal to seventy five
percent (75%) of the Allowed amount of such Class 8 Claim.
c. Voting: Class 8 Claims are Impaired and the holders of
Allowed Class 8 Claims are entitled to vote to accept or reject the
Reorganization Plan.
4.10 Class 9 - Intercompany Claims.
a. Classification: Class 9 consists of all Intercompany
Claims. Class 9 is subdivided into three Subclasses for Distribution purposes:
Subclass 9A consists of the Liquidating Debtors Intercompany Claims; Subclass 9B
consists of the Reorganized Debtors Intercompany Claims; Subclass 9C consists of
the Heber Debtors Intercompany Claims.
b. Treatment: On the Effective Date, Intercompany Claims
shall, be treated as follows:
I. Treatment of Subclass 9A Claims: In full satisfaction,
release and discharge of each Liquidating Debtors Intercompany Claim, each such
Liquidating Debtors Intercompany Claim shall be deemed cancelled or waived in
exchange for the Reorganizing Debtors contribution of the Operating Reserve
Deficiency Amount, if any, to the Operating Reserve.
II. Treatment of Subclass 9B Claims: In the sole discretion of
the applicable Reorganizing Debtor or Reorganized Debtor, Reorganizing Debtors
Intercompany Claims shall be either: (a) preserved and reinstated, (b) released,
waived and discharged, or (c) contributed to the capital of the obligor
corporation.
III. Treatment of Subclass 9C Claims: In full satisfaction,
release and discharge of each Heber Debtors Intercompany Claim, each such Heber
Debtors Intercompany Claim shall be deemed released, waived and discharged.
c. Voting: Class 9 Claims are Impaired, and the holders of
Allowed Class 9 Claims are conclusively presumed to reject the Reorganization
Plan. The votes of the holders of Allowed Class 9 Claims will not be solicited.
4.11 Class 10 - Subordinated Claims.
a. Classification: Class 10 consists of all Allowed
Subordinated Claims.
b. Treatment: As of the Effective Date, holders of Class 10
Claims shall not receive any Distributions or retain any property under the
Reorganization Plan in respect of Class 10 Claims, in full satisfaction, release
and discharge of such Claims.
c. Voting: Class 10 Claims are Impaired, and the holders of
Allowed Class 10 Claims are conclusively presumed to reject the Reorganization
Plan. The votes of holders of Allowed Class 10 Claims will not be solicited.
4.12 Class 11 - Equity Interests in Subsidiary Debtors.
a. Classification: Class 11 consists of all Allowed Equity
Interests in Subsidiary Debtors.
b. Treatment: Holders of Equity Interests in Subsidiary
Debtors shall not receive any Distribution under the Reorganization Plan, except
that any such Equity Interest in a Subsidiary Debtor shall continue to be held
by the Reorganizing Debtor that originally held such Equity Interest, which
Equity Interests shall be evidenced by the existing capital stock, partnership
and/or membership interests.
c. Voting: Class 11 Equity Interests are Impaired, and the
holders of Allowed Class 11 Equity Interests are conclusively presumed to reject
the Reorganization Plan. The votes of holders of Allowed Class 11 Equity
Interests will not be solicited.
4.13 Class 12 - Equity Interests in Covanta Huntington, Covanta
Onondaga and DSS Environmental.
a. Classification: Class 12 consists of all Equity Interests
in Covanta Huntington, Covanta Onondaga and DSS Environmental.
b. Treatment: As of the Effective Date, the holders of Equity
Interests in Covanta Huntington, Covanta Onondaga and DSS Environmental shall be
reinstated, in full satisfaction, release and discharge of any Allowed Class 12
Equity Interests.
c. Voting: Class 12 Equity Interests are Unimpaired, and the
holders of Allowed Class 12 Equity Interests are conclusively presumed to accept
this Reorganization Plan. The votes of holders of Class 12 Equity Interests will
not be solicited.
4.14 Class 13 - Old Covanta Stock Equity Interests.
a. Classification: Class 13 consists of all Equity Interests
of holders of Old Covanta Stock.
b. Treatment: Holders of Allowed Class 13 Equity Interests
shall not receive any Distribution or retain any property under the
Reorganization Plan in respect of Class 13 Equity Interests. All Class 13 Equity
Interests shall be cancelled, annulled and extinguished, in full satisfaction,
release and discharge of any Allowed Class 13 Equity Interests.
c. Voting: Class 13 Equity Interests are Impaired, and the
holders of Allowed Class 13 Equity Interests are conclusively presumed to reject
the Reorganization Plan. The votes of holders of Allowed Class 13 Equity
Interests will not be solicited.
4.15 Class 14 - Equity Interests in Heber Debtors.
a. Classification: Class 14 consists of all Equity Interests
in the Heber Debtors. Class 12 is subdivided into two Subclasses for
Distribution purposes: Subclass 14A consists Equity Interests in Covanta SIGC
Energy I, Covanta SIGC Energy II, Heber Field Company and Heber Geothermal
Company; Subclass 14B consists of Equity Interests in Amor 14 and Second
Imperial Geothermal Company.
b. Treatment: Holders of Allowed Class 14A Equity Interests
shall not receive any Distribution or retain any property under the
Reorganization Plan in respect of Class 14A Equity Interests. All Class 14A
Equity Interests shall be cancelled, annulled and extinguished, in full
satisfaction, release and discharge of any Allowed Class 14A Equity Interests.
Holders of Allowed Class 14B Equity Interests shall not
receive any Distribution under the Reorganization Plan, except that any such
Equity Interests shall continue to be held by the Heber Debtor or Reorganizing
Debtor that originally held such Equity Interests, which Equity Interests shall
continue to be evidenced by the existing capital stock, partnership and/or
membership interests.
c. Voting: Class 14 Equity Interests are Impaired, and the
holders of Allowed Class 14 Equity Interests are conclusively presumed to reject
the Reorganization Plan. The votes of holders of Allowed Class 14 Equity
Interests will not be solicited.
4.16 Settlement of Loss Sharing Litigation. The Reorganization Plan
hereby incorporates in full, makes a part hereof as if fully set forth herein
and implements the proposed compromise and settlement of all issues relating to
or arising under the Loss Sharing Litigation, which compromise and settlement is
to be set forth in the Reorganization Plan Supplement substantially on the terms
described in the term sheet annexed hereto as Exhibit 4. In consideration for
the distribution and other benefits under the proposed compromise and settlement
and the Reorganization Plan, the Loss Sharing Litigation shall be deemed settled
on the Effective Date without further action by any Person and all parties
thereto shall be permanently enjoined from asserting or continuing in any manner
the Loss Sharing Litigation or any claims relating thereto.
ARTICLE V
ACCEPTANCE OR REJECTION OF THE REORGANIZATION PLAN
5.1 Voting of Claims. Except as otherwise indicated herein or as
otherwise provided by a Final Order of the Court, each holder of an Allowed
Claim in an Impaired Class of Claims shall be entitled to vote to accept or
reject this Reorganization Plan. For purposes of calculating the number of
Allowed Claims in a Class of Claims that have voted to accept or reject this
Reorganization Plan under section 1126(c) of the Bankruptcy Code, all Allowed
Claims in such Class held by one entity or any affiliate thereof (as defined in
the Securities Act of 1933 and the rules and regulation promulgated thereunder)
shall be aggregated and treated as one Allowed Claim in such Class.
5.2 Acceptance by a Class. Consistent with section 1126(c) of the
Bankruptcy Code and except as provided for in section 1126(e) of the Bankruptcy
Code, an Impaired Class of Claims shall have accepted this Reorganization Plan
if it is accepted by at least two-thirds in dollar amount, and more than
one-half in number of the Allowed Claims of such Class that have timely and
properly voted to accept or reject this Reorganization Plan.
5.3 Presumed Acceptance of Plan. Holders of Claims in Classes 1, 2, 2H,
7 and 12 are Unimpaired by this Reorganization Plan. In accordance with section
1126 of the Bankruptcy Code, holders of Allowed Claims in such Classes are
conclusively presumed to accept this Reorganization Plan and the votes of
holders of such Claims will not be solicited.
5.4 Presumed Rejection of Plan. Holders of Claims and Equity Interests
in Classes 9, 10, 11, 13 and 14 are Impaired and are not entitled to receive any
Distribution under this Reorganization Plan on account of such Claims or Equity
Interests. In accordance with section 1126 of the Bankruptcy Code, holders of
Allowed Claims and Equity Interests in such Classes are conclusively presumed to
reject this Reorganization Plan and are not entitled to vote. As such, the votes
of such holders will not be solicited with respect to such Claims and Equity
Interests.
5.5 Cramdown. To the extent that any Impaired Class rejects or is
presumed to have rejected this Reorganization Plan, the Reorganizing Debtors and
Heber Debtors reserve the right to (a) request that the Court confirm the
Reorganization Plan in accordance with section 1129(b) of the Bankruptcy Code,
or (b) modify, alter or amend this Reorganization Plan to provide treatment
sufficient to assure that this Reorganization Plan does not discriminate
unfairly, and is fair and equitable, with respect to the Class or Classes not
accepting this Reorganization Plan, and, in particular, the treatment necessary
to meet the requirements of subsections 1129(a) or (b) of the Bankruptcy Code
with respect to the rejecting Classes and any other Classes affected by such
modifications.
ARTICLE VI
MEANS FOR IMPLEMENTATION
6.1 Exit Financing. (a) On the Effective Date, the Reorganized Debtors
are authorized to and shall enter into the Exit Financing Agreements and effect
all transactions and take any actions provided for in or contemplated by the
Exit Financing Agreements, including without limitation, the payment of all fees
and other amounts contemplated by the Exit Financing Agreements.
(b) All Cash necessary for the Reorganized Debtors to make payments
pursuant to this Reorganization Plan will be obtained from the Reorganized
Debtors' cash balances and operations and borrowings under the Exit Financing
Agreements, subject to the terms thereof.
6.2 Implementation of Geothermal Sale. The implementation of this
Reorganization Plan is predicated upon the approval by the Court of the
Geothermal Sale, and the consummation thereof. The terms and conditions of the
Geothermal Sale are incorporated herein and shall be deemed included as part of
this Reorganization Plan for all purposes, including, without limitation,
section 1146 of the Bankruptcy Code.
6.3 Authorization of Common Stock, Reorganization Plan Notes and
Reorganized Heber Equity Interests. On the Effective Date, Reorganized Covanta
is authorized to and shall issue the Reorganized Covanta Common Stock, the
Reorganization Plan Warrants and the Reorganization Plan Notes and Reorganized
CPIH is authorized to and shall issue the Reorganized CPIH Preferred Stock and
the New CPIH Funded Debt, in each case as provided under this Reorganization
Plan without the need for any further corporate action. Additionally, the
Reorganized Heber Debtors are authorized to and shall issue, as applicable, the
Reorganized Heber Equity Interests, in each case as provided under this
Reorganization Plan without the need for further corporate action.
6.4 Formation of ESOP. On the Effective Date, subject to the terms and
conditions of the ESOP Plan Document, Reorganized Covanta is authorized to, and
shall establish an ESOP on behalf of its employees, which shall become the owner
of one hundred percent (100%) of the Reorganized Covanta Common Stock.
6.5 Cancellation of Existing Securities and Agreements. Except for
purposes of evidencing a right to Distributions under this Reorganization Plan
or otherwise provided hereunder, on the Effective Date, all the agreements and
other documents evidencing (i) any Claims or rights of any holder of a Claim
against the applicable Reorganizing Debtor, including all indentures and notes
evidencing such Claims and (ii) any options or warrants to purchase Equity
Interests, obligating the applicable Reorganizing Debtor or Heber Debtor to
issue, transfer or sell Equity Interests or any other capital stock of the
applicable Reorganizing Debtor, shall be cancelled without the need for further
action; provided, however, that notwithstanding the foregoing, the Reorganized
Debtors and Reorganized Heber Debtors shall remain obligated with respect to
liens, security interests or encumbrances in property of the Reorganized Debtors
and Reorganized Heber Debtors that have been granted pursuant to any executory
contracts that have been assumed in accordance with Article IX of this
Reorganization Plan or pursuant to the Exit Financing Agreements.
6.6 Board of Directors and Executive Officers.
(a) The identity of each of the nominees to serve on the Board
of Directors of Reorganized Covanta shall be announced [thirty (30)] days prior
to the Confirmation Hearing. In accordance with section 1129(a)(5) of the
Bankruptcy Code, as part of such announcement, the Reorganizing Debtors shall
disclose (i) the identity and affiliations of any individual proposed to serve,
after the Effective Date, as a director or officer of the Reorganized Debtors,
and (ii) the identity of any "insider" (as such term is defined in section
101(31) of the Bankruptcy Code) who shall be employed and retained by the
Reorganized Debtors and the nature of any compensation for such insider.
(b) Subject to Section 6.6(a), the officers of the
Reorganizing Debtors and the directors of the Reorganizing Debtors other than
Covanta that are in office immediately before the Effective Date shall continue
to serve immediately after the Effective Date in their respective capacities.
(c) The officers and directors of the Heber Debtors that are
in office immediately before the Effective Date shall resign as of the Effective
Date. The Buyers under the Geothermal Sale shall designate and appoint the new
officers and directors of the Reorganized Heber Debtors.
(d) [The Reorganizing Debtors and the Committee acknowledge,
and the Confirmation Order shall confirm, the validity, priority,
nonavoidability, perfection and enforceability of the Liens and Claims of the
Agent Banks on behalf of the Prepetition Lenders under the Prepetition Credit
Agreement, and any and all rights to bring any challenge with respect thereto
are hereby waived.]
6.7 Deemed Consolidation of Debtors for Plan Purposes Only. Subject to
the occurrence of the Effective Date, the Reorganizing Debtors and Heber Debtors
shall be deemed consolidated solely for the following purposes under the
Reorganization Plan: (i) as provided with respect to Class 11 Claims, no
Distributions shall be made under the Reorganization Plan on account of Equity
Interests in Subsidiary Debtors; and (ii) in some instances, Claims against more
than one Reorganizing Debtor and Heber Debtors have been grouped together into a
single Class of Claims for voting and distribution purposes.
Such deemed consolidation, however, shall not affect: (i) the
legal and organizational structure of the Reorganized Debtors and Heber Debtors;
(ii) the ownership interest of any Reorganizing Debtor in any Subsidiary Debtor
and (iii) pre and post-Petition Date guarantees, Liens and security interests
that are required to be maintained (a) in connection with executory contracts or
unexpired leases that were entered into during the Chapter 11 Cases or that have
been or will be assumed, or (b) pursuant to this Reorganization Plan or the
instruments and documents issued in connection herewith (including, without
limitation, the Exit Financing Agreements).
6.8 Continued Corporate Existence; Vesting of Assets in the Reorganized
Debtors and Reorganized Heber Debtors and Corporate Restructuring. (a) Each of
the Reorganizing Debtors and Heber Debtors shall, as a Reorganized Debtor or
Heber Debtor respectively, continue to exist after the Effective Date as a
separate legal entity, with all powers of a corporation, limited liability
company or general or limited partnership, as the case may be, under the laws of
their respective states of incorporation or organization and without prejudice
to any right to alter or terminate such existence (whether by merger or
otherwise) under such applicable state law.
(b) The Reorganized Debtors and Heber Debtors shall be
revested with their assets as provided in Section 11.1 of this Reorganization
Plan, subject to the Liens granted under the applicable Exit Financing
Agreements.
(c) On the Effective Date, the Reorganized Debtors shall
undertake a corporate restructuring pursuant to which all Reorganized Debtors
that own or operate businesses located outside the United States shall become
direct or indirect subsidiaries of CPIH.
(d) On the second business day prior to the Effective Date,
the Heber Debtors that are stock corporations shall be authorized to convert
into limited liability companies.
6.9 Amended Organizational Documents. On the Effective Date, the
Reorganized Debtors and Heber Debtors are authorized to, and shall, without the
need for any further corporate action, adopt and, as applicable, file their
respective amended organizational documents with the applicable Secretary of
State. The amended organizational documents shall prohibit the issuance of
nonvoting equity securities, as required by sections 1123(a) and (b) of the
Bankruptcy Code, subject to further amendment as permitted by applicable law.
6.10 Settlements. Except to the extent the Court has entered a separate
order providing for such approval, the Confirmation Order shall constitute an
order (a) approving as a compromise and settlement pursuant to section
1123(b)(3)(A) of the Bankruptcy Code and Bankruptcy Rule 9019, any settlement
agreements entered into by any Reorganizing Debtor or Heber Debtor or any other
Person as contemplated in confirmation of this Reorganization Plan, and (b)
authorizing the Reorganizing Debtors' and Heber Debtors' execution and delivery
of all settlement agreements entered into or to be entered into by any
Reorganizing Debtor, Heber Debtor or any other Person as contemplated by this
Reorganization Plan and all related agreements, instruments or documents to
which any Reorganizing Debtor or Heber Debtor is a party.
6.11 Employee Benefits. Except as set forth in this Section, the
Reorganizing Debtors generally intend to maintain existing employee benefit
plans, subject to the Reorganizing Debtors or Reorganized Debtors' rights to
amend, terminate or modify those plans at any time as permitted by such plans or
applicable nonbankruptcy law.
6.12 Funding the Operating Reserve. On the Effective Date, the
Reorganizing Debtors shall fund Operating Reserve to the extent of the Operating
Reserve Deficiency Amount, if any, by transferring the Operating Reserve
Deficiency Amount to the Operating Reserve.
6.13 Management Incentive Payment. On the Effective Date, management of
the Reorganizing Debtors shall be entitled to receive an incentive bonus of cash
in an amount equal to two and one half percent (2 1/2%) of the Free Cash, if
any, in excess of Distributable Cash.
ARTICLE VII
DISTRIBUTIONS
7.1 Distribution Record Date. As of the close of business on the
applicable Distribution Record Date, the applicable Reorganizing Debtor and
Heber Debtor's books and records for each of the Classes of Claims or Equity
Interests as maintained by such Reorganizing Debtor or its respective agent, or,
in the case of the 9.25% Debentures, the Indenture Trustee therefor, shall be
deemed closed, and there shall be no further changes in the record holders of
any of the Claims or Equity Interests. The applicable Reorganizing Debtor or
Heber Debtor shall have no obligation to recognize any transfer of Claims or
Equity Interests occurring on or after the applicable Distribution Record Date.
The applicable Reorganizing Debtor or Heber Debtor shall be entitled to
recognize and deal for all purposes hereunder only with those record holders
stated in the books and records of the applicable Reorganizing Debtor or Heber
Debtor or its respective agent, or, in the case of the 9.25% Debentures, the
Indenture Trustee thereof, as of the close of business on the Distribution
Record Date, to the extent applicable.
7.2 Date of Distributions. Unless otherwise provided herein, any
Distributions and deliveries to be made hereunder shall be made on the Effective
Date or as soon thereafter as is practicable. In the event that any payment or
act under this Reorganization Plan is required to be made or performed on a date
that is not a Business Day, then the making of such payment or the performance
of such act may be completed on the next succeeding Business Day, but shall be
deemed to have been completed as of the initial due date.
7.3 Disbursing Agent.
(a) Reorganized Covanta and such other Person as may be
selected by Reorganized Covanta and approved by the Court shall act as
Disbursing Agent(s) under the Reorganization Plan. No Court approval shall be
required to use the Indenture Trustee for the 9.25% Debentures as a Disbursing
Agent for distributions to holders of 9.25% Debentures or for using Bank of
America, N.A., as a Disbursing Agent for distributions to the Prepetition
Lenders.
(b) A Disbursing Agent shall not be required to give any bond
or surety or other security for the performance of its duties unless otherwise
ordered by the Court, and, in the event that a Disbursing Agent is so otherwise
ordered, the costs and expenses that are directly related to procuring any such
bond or surety shall be borne by the Reorganized Debtors.
7.4 Rights and Powers of Disbursing Agent. The Disbursing Agent shall
be empowered to (i) effect all actions and execute all agreements, instruments
and other documents necessary to perform its duties under this Reorganization
Plan, (ii) make all Distributions contemplated hereby, (iii) employ
professionals to represent it with respect to its responsibilities, and (iv)
exercise such other powers as may be vested in the Disbursing Agent by order of
the Court, pursuant to this Reorganization Plan, or as deemed by the Disbursing
Agent to be necessary and proper to implement the provisions hereof.
7.5 Surrender of Instruments. As a condition to receiving any
Distribution under this Reorganization Plan, each holder of an Allowed Claim
represented by a certificated instrument or note must surrender such instrument
or note held by it to the Disbursing Agent or its designee, unless such
certificated instrument or note is being reinstated or being left unimpaired
under this Reorganization Plan. Any holder of such instrument or note that fails
to (i) surrender such instrument or note or (ii) execute and deliver an
affidavit of loss and/or indemnity reasonably satisfactory to the Disbursing
Agent or furnish a bond in form, substance and amount reasonably satisfactory to
the Disbursing Agent before the first anniversary of the Effective Date, shall
be deemed to have forfeited all rights and Claims and may not participate in any
Distribution under this Reorganization Plan in respect of such Claim. Any other
holder of an Allowed Claim who fails to take such action as reasonably required
by the Disbursing Agent or its designee to receive its Distribution hereunder
before the first anniversary of the Effective Date, or such earlier time as
otherwise provided for in this Reorganization Plan, may not participate in any
Distribution under this Reorganization Plan in respect of such Claim. Any
Distribution forfeited hereunder shall become property of the applicable
Reorganized Debtor, or in the case of Cash Distributions made on behalf of Heber
Debtors, shall become the property of the Reorganized Debtors.
7.6 Delivery of Distributions. Distributions to holders of Allowed
Claims shall be made at 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 filed by such holders or other writing notifying the
applicable Reorganized Debtor or Heber Debtor 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 the applicable Reorganized Debtor or
Heber Debtor is notified of such holder's then current address, at which time
all missed Distributions shall be made to such holder without interest on or
before one hundred and twenty (120) days after the date such undeliverable
Distribution was initially made. After such date, all unclaimed property shall,
in the applicable Reorganized Debtor or Heber Debtor's discretion, be used to
satisfy the costs of administering and fully consummating this Reorganization
Plan or become property of the applicable Reorganized Debtor (or, in the case of
Heber Debtors, shall become the property of the Reorganized Debtors), and the
holder of any such Claim shall not be entitled to any other or further
distribution under this Reorganization Plan on account of such Claim.
7.7 Manner of Payment Under Plan.
(a) All Distributions of Cash, Reorganization Plan Notes or
Reorganization Plan Equity Securities and Warrants to the holders of Allowed
Claims against each of the Reorganizing Debtors under this Reorganization Plan,
shall be made by the Disbursing Agent on behalf of the applicable Reorganized
Debtor. Any Distributions that revert to the applicable Reorganized Debtor or
are otherwise cancelled (such as pursuant to Section 7.5 or 7.6 of this
Reorganization Plan) shall revest solely in the applicable Reorganized Debtor.
(b) At the option of the applicable Reorganized Debtor, any
Cash payment to be made hereunder may be made by a check or wire transfer or as
otherwise required or provided in applicable agreements.
7.8 De Minimis and Fractional Distributions. Unless written request
addressed to the Reorganized Debtors or Reorganized Heber Debtors, as
applicable, or Disbursing Agent is received within one hundred and twenty (120)
days after the Effective Date, the Disbursing Agent or such other entity
designated by such Reorganized Debtor as a Disbursing Agent on or after the
Effective Date will not be required to distribute Cash, Reorganization Plan
Notes or Reorganization Plan Equity Securities and Warrants to the holder of an
Allowed Claim in an Impaired Class if the amount of Cash or the Estimated
Recovery Value of such Reorganization Plan Notes and Reorganization Equity
Securities combined to be distributed on any Distribution Date under the
Reorganization Plan on account of such Claim is less than $50. Any holder of an
Allowed Claim on account of which the amount of Cash or the combined Estimated
Recovery Value of Reorganization Plan Notes and Reorganization Plan Equity
Securities and Warrants to be distributed is less than $50 will have its Claim
for such Distribution discharged and will be forever barred from asserting any
such Claim against the Reorganized Debtors, the Reorganized Heber Debtors or
their respective property. Any Cash, Reorganization Plan Notes or Reorganization
Equity Securities and Warrants not distributed pursuant to this Section 7.8 will
become the property of the Reorganized Debtors, free of any Liens, encumbrances
or restrictions thereon.
7.9 Exemption from Securities Laws. The issuance of the Reorganization
Plan Notes and Reorganization Plan Equity Securities and Warrants pursuant to
this Reorganization Plan shall be exempt from any securities laws registration
requirements to the fullest extent permitted by section 1145(a)(1)(A) of the
Bankruptcy Code and section (3)(a)(7) of the Securities Act of 1933.
7.10 Setoffs. Each Reorganizing Debtor may, in accordance with the
provisions of the Reorganization Plan, section 553 of the Bankruptcy Code and
applicable non-bankruptcy law, set off against any Allowed Claim and the
Distributions to be made pursuant to this Reorganization Plan on account of such
Allowed Claim (before any Distribution is made on account of such Allowed
Claim), the Claims, rights and causes of action of any nature that such
Reorganizing Debtor may hold against the holder of such Allowed Claim; provided,
however, that neither the failure to effect such a setoff nor the allowance of
any Claim hereunder shall constitute a waiver or release by the applicable
Reorganizing Debtor of any such Claims, rights and causes of action that the
applicable Reorganizing Debtor may possess against such holder; and provided,
further that any Claims of each Reorganizing Debtor arising before the
applicable Petition Date shall only be setoff against Claims against such
Reorganizing Debtor arising before the applicable Petition Date.
7.11 Allocation of Plan Distribution Between Principal and Interest.
All Distributions in respect of any Allowed Claim shall be allocated first to
the principal amount of such Allowed Claim, as determined for federal income tax
purposes, and thereafter, to the remaining portion of such Allowed Claim, if
any.
7.12 Withholding and Reporting Requirements. In connection with this
Reorganization Plan and all instruments issued in connection therewith and
distributed thereon, the applicable Reorganizing Debtor, Heber Debtor and/or
Disbursing Agent shall comply with all applicable withholding and reporting
requirements imposed by any federal, state or local taxing authority, and all
distributions under this Reorganization Plan shall be subject to any such
withholding or reporting requirements.
7.13 Time Bar to Cash Payments. Checks issued by the Reorganized
Debtors and Heber Debtors in respect of Allowed Claims shall be null and void if
not negotiated within ninety (90) days after the date of issuance thereof.
Requests for reissuance of any check shall be made to the applicable Reorganized
Debtor or Reorganized Heber Debtor by the holder of the Allowed Claim to whom
such check originally was issued. Any Claim in respect of such voided check
shall be made on or before thirty (30) days after the expiration of the sixty
(60) day period following the date of issuance of such check. After such date,
all funds held on account of such voided check shall, in the discretion of the
applicable Reorganized Debtor or Reorganized Heber Debtor, be used to satisfy
the costs of administering and fully consummating this Reorganization Plan or
become property of the applicable Reorganized Debtor (or, in the case of Cash
not distributed by the Heber Debtors, shall become the property of the
Reorganized Debtors), and the holder of any such Allowed Claim shall not be
entitled to any other or further Distribution under this Reorganization Plan on
account of such Allowed Claim.
7.14 Closing of Chapter 11 Cases. As to each Reorganizing Debtor and
Heber Debtor, when substantially all Disputed Claims have become Allowed Claims
or have been disallowed by Final Order, and all Distributions in respect of
Allowed Claims have been made in accordance with this Reorganization Plan, or at
such earlier time as each of the Reorganized Debtors or Reorganized Heber
Debtors deems appropriate, the Reorganized Debtors and Reorganized Heber Debtors
shall seek authority from the Court to close their respective Chapter 11 Cases
in accordance with the Bankruptcy Code and the Bankruptcy Rules.
ARTICLE VIII
PROCEDURES FOR RESOLVING AND TREATING DISPUTED CLAIMS
8.1 No Distribution Pending Allowance. Notwithstanding any other
provision of this Reorganization Plan, no Cash, Reorganization Plan Notes or
Reorganization Plan Equity Securities and Warrants shall be distributed under
this Reorganization Plan on account of any Disputed Claim, unless and until all
objections to such Disputed Claim have been settled or withdrawn or have been
determined by Final Order and the Disputed Claim, or some portion thereof, has
become an Allowed Claim.
8.2 Resolution of Disputed Claims and Equity Interests.
(a) Unless otherwise ordered by the Court after notice and a
hearing, the Reorganizing Debtors or Reorganized Debtors, or the Heber Debtors
or Reorganized Heber Debtors, as the case may be, shall have the exclusive right
to make and file objections to Claims (other than Administrative Expense Claims)
and shall serve a copy of each objection upon the holder of the Claim to which
the objection is made as soon as practicable, but in no event later than one
hundred and twenty (120) days after the Effective Date; provided, however, that
such one hundred and twenty (120) day period may be automatically extended by
the Reorganizing Debtors or Heber Debtors, without any further application to,
or approval by, the Court, for up to an additional thirty (30) days. The
foregoing deadlines for filing objections to Claims shall not apply to Claims
for tort damages and, accordingly, no such deadline shall be imposed by this
Reorganization Plan. Notwithstanding any authority to the contrary, an objection
to a Claim shall be deemed properly served on the holder thereof if the
Reorganizing Debtors or Heber Debtors effect service in any of the following
manners: (i) in accordance with Rule 4 of the Federal Rules of Civil Procedure,
as modified and made applicable by Bankruptcy Rule 7004; (ii) by first class
mail, postage prepaid, on the signatory on the proof of claim or interest or
other representative identified in the proof of claim or interest or any
attachment thereto; or (iii) by first class mail, postage, on any counsel that
has appeared on the holder's behalf in the Chapter 11 Cases.
(b) Except with respect to Administrative Expense Claims as to
which the Administrative Expense Claim Bar Date does not apply, Administrative
Expense Claims must be filed with the Court and served on counsel for the
Reorganizing Debtors and Heber Debtors on or before the Administrative Expense
Claim Bar Date. The Reorganizing Debtors, Reorganized Debtors, Heber Debtors,
Reorganized Heber Debtors or any other party in interest permitted under the
Bankruptcy Code may make and file objections to any such Administrative Expense
Claim and shall serve a copy of each objection upon the holder of the Claim to
which the objection is made as soon as practicable, but in no event later than
one hundred and eighty (180) days after the Effective Date. In the event the
Reorganizing Debtors, Reorganized Debtors, Heber Debtors or Reorganized Heber
Debtors file any such objection, the Court shall determine the Allowed amount of
any such Administrative Expense Claim. Notwithstanding the foregoing, no request
for payment of an Administrative Expense Claim need be filed with respect to an
Administrative Expense Claim which is paid or payable by the Reorganizing
Debtors or Heber Debtors in the ordinary course of business.
8.3 Estimation of Claims and Equity Interests. The Reorganizing Debtors
and Heber Debtors may at any time request that the Court estimate any
contingent, unliquidated or Disputed Claim pursuant to section 502(c) of the
Bankruptcy Code, regardless of whether the Reorganizing Debtors or Heber Debtors
previously objected to such Claim or whether the Court has ruled on any such
objection, and the Court will retain jurisdiction to estimate any Claim at any
time during litigation concerning any objection to any Claim. In the event that
the Court estimates any Disputed Claim, that estimated amount may constitute
either the 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, the Reorganizing Debtors or Heber Debtors may elect to
pursue any supplemental proceedings to object to any ultimate payment of such
Claim. All of the aforementioned Claims objection, estimation and resolution
procedures are cumulative and not necessarily exclusive of one another.
8.4 Reserve Account for Disputed Claims. On and after the Effective
Date, the Disbursing Agent shall hold in one or more Disputed Claims Reserves,
for each Class in which there are any Disputed Claims, Cash, Reorganization Plan
Notes or Reorganization Plan Equity Securities and Warrants in an aggregate
amount sufficient to pay to each holder of a Disputed Claim the amount of Cash,
Reorganization Plan Notes or Reorganization Plan Equity Securities and Warrants
that such holder would have been entitled to receive pro rata under this
Reorganization Plan if such Claim had been an Allowed Claim in such Class;
provided, however that with respect to Disputed Claims in Class 4, the
Reorganized Debtors shall not be required to establish a Disputed Claims Reserve
but instead shall issue new Reorganization Plan Unsecured Notes if and when any
Disputed Claim in Class 4 becomes an Allowed Claim. Cash withheld and reserved
for payments to holders of Disputed Claims in any Class shall be held and
deposited by the Disbursing Agent in one or more segregated interest-bearing
reserve accounts for each Class of Claims in which there are Disputed Claims
entitled to receive Cash, to be used to satisfy the Disputed Claims if and when
such Disputed Claims become Allowed Claims.
8.5 Allowance of Disputed Claims. With respect to any Disputed Claim
that is subsequently deemed Allowed, on the Distribution Date for any such Claim
the Reorganizing Debtors or Heber Debtors shall distribute from the Disputed
Claims Reserve Account corresponding to the Class in which such Claim is
classified to the holder of such Allowed Claim the amount of Cash,
Reorganization Plan Notes or Reorganization Plan Equity Securities and Warrants
that such holder would have been entitled to recover pro rata under this
Reorganization Plan if such Claim had been an Allowed Claim on the Effective
Date, together with such claimholder's Pro Rata Class Share of net interest, if
any, on such Allowed Claim. For purposes of the immediately preceding sentence,
such holder's Pro Rata Class Share of net interest shall be calculated by
multiplying the amount of interest on deposit in the applicable Disputed Claims
Reserve account on the date immediately preceding the date on which such Allowed
Claim is to be paid by a fraction, the numerator of which shall equal the amount
of such Allowed Claim and the denominator of which shall equal the amount of all
Claims for which deposits are being held in the applicable Disputed Claims
Reserve account on the date immediately preceding the date on which such Allowed
Claim is to be paid.
8.6 Release of Funds from Disputed Claims Reserve. If at any time or
from time to time after the Effective Date, there shall be Cash, Reorganization
Plan Notes or Reorganization Plan Equity Securities and Warrants in a Disputed
Claims Reserve account in an amount in excess of the Reorganizing Debtors' or
Heber Debtors maximum remaining payment obligations to the then existing holders
of Disputed Claims in the Class of Claims corresponding to such Disputed Claims
Reserve account under this Reorganization Plan, such excess funds, and the Pro
Rata Class Share of net interest in respect thereof, shall become available for
Distribution to the holders of Allowed Claims in the Class corresponding to the
Disputed Claims Reserve Account at issue in accordance with this Reorganization
Plan.
ARTICLE IX
TREATMENT OF EXECUTORY
CONTRACTS AND UNEXPIRED LEASES
9.1 General Treatment. (a) On the Effective Date, all executory
contracts and unexpired leases to which each Reorganizing Debtor listed on
Exhibit 9.1A (collectively, the "Rejecting Debtors") is a party shall be deemed
rejected, except for any executory contract or unexpired lease of the Rejecting
Debtors that (i) has been previously assumed or rejected pursuant to a Final
Order of the Court, (ii) is specifically designated as a contract or lease on
the Rejecting Debtors' Schedule of Assumed Contracts and Leases, to be filed
prior to the Confirmation Hearing, or (iii) is the subject of a separate motion
to assume or reject filed under section 365 of the Bankruptcy Code by the
Reorganizing Debtors prior to the Confirmation Hearing.
(b) On the Effective Date, all executory contracts and unexpired leases
to which each Reorganizing Debtor listed on Exhibit 9.1B and each Heber Debtor
(collectively, the "Assuming Debtors") is a party shall be deemed assumed,
except for any executory contract or unexpired lease of the Assuming Debtors
that (i) has been previously assumed or rejected pursuant to a Final Order of
the Court, (ii) is specifically designated as a contract or lease on the
Assuming Debtors' Schedule of Rejected Contracts and Leases, to be filed prior
to the Confirmation Hearing, or (iii) is the subject of a separate motion to
assume or reject filed under section 365 of the Bankruptcy Code by the
Reorganizing Debtors or Heber Debtors prior to the Confirmation Hearing.
(c) Each executory contract and unexpired lease listed or to be listed
on the Rejecting Debtors' Schedule of Assumed Contracts and Leases or the
Assuming Debtors' Schedule of Rejected Contracts and Leases (collectively, the
"Contract Schedules") shall include modifications, amendments, supplements,
restatements or other agreements, including guarantees thereof, made directly or
indirectly by any Reorganizing Debtor or Heber Debtor in any agreement,
instrument or other document that in any manner affects such executory contract
or unexpired lease, without regard to whether such agreement, instrument or
other document is listed on the Contract Schedules. The mere listing of a
document on the Contract Schedules shall not constitute an admission by the
Reorganizing Debtors or Heber Debtors that such document is an executory
contract or unexpired lease or that the Reorganizing Debtors have any liability
thereunder.
9.2 Cure of Defaults. Except to the extent that (i) a different
treatment has been agreed to by the nondebtor party or parties to any executory
contract or unexpired lease to be assumed pursuant to Section 9.1 of this
Reorganization Plan or, (ii) any executory contract or unexpired lease shall
have been assumed pursuant to an order of the Court which order shall have
approved the cure amounts with respect thereto, the applicable Reorganizing
Debtor or Heber Debtor shall, pursuant to the provisions of sections
1123(a)(5)(G) and 1123(b)(2) of the Bankruptcy Code and consistent with the
requirements of section 365 of the Bankruptcy Code, within thirty (30) days
after the Confirmation Date, file with the Court and serve a pleading listing
the cure amounts of all executory contracts or unexpired leases to be assumed.
The parties to such executory contracts or unexpired leases to be assumed by the
applicable Reorganizing Debtor or Heber Debtor shall have fifteen (15) days from
service of such pleading to object to the cure amounts listed by the applicable
Reorganizing Debtor or Heber Debtor. Service of such pleading shall be
sufficient if served on the other party to the contract or lease at the address
indicated on (i) the contract or lease, (ii) any proof of claim filed by such
other party in respect of such contract or lease, or (iii) the Reorganizing
Debtors' books and records, including the Schedules; provided, however, that if
a pleading served by a Reorganizing Debtor or Heber Debtor to one of the
foregoing addresses is promptly returned as undeliverable, the Reorganizing
Debtor or Heber Debtor shall attempt reservice of the pleading on an alternative
address, if any, from the above listed sources. If any objections are filed, the
Court shall hold a hearing. Prior to assumption, the applicable Reorganizing
Debtor or Heber Debtor shall retain its right to reject any of its executory
contracts or unexpired leases, including contracts or leases that are subject to
a dispute concerning amounts necessary to cure any defaults. Notwithstanding the
foregoing or anything in Section 9.3 of this Reorganization Plan, at all times
through the date that is five (5) Business Days after the Court enters an order
resolving and fixing the amount of a disputed cure amount, the Reorganizing
Debtors shall have the right to reject such executory contract or unexpired
lease.
9.3 Approval of Assumption of Certain Executory Contracts. Subject to
Sections 9.1 and 9.2 of this Reorganization Plan, the executory contracts and
unexpired leases on the Rejecting Debtors' Schedule of Assumed Contracts and the
executory contracts and unexpired leases of the Assuming Debtors other than
those listed on the Assuming Debtors' Schedule of Rejected Contracts and Leases
shall be assumed by the respective Reorganizing Debtors or Heber Debtors as of
the Effective Date. Except as may otherwise be ordered by the Court, the
Reorganizing Debtors and Heber Debtors shall have the right to cause any assumed
executory contract or unexpired lease to vest in the Reorganized Debtor or
Reorganized Heber Debtors designated for such purpose by the Reorganizing
Debtors or Heber Debtors.
9.4 Approval of Rejection of Executory Contracts and Unexpired Leases.
Entry of the Confirmation Order shall constitute the approval, pursuant to
section 365(a) of the Bankruptcy Code, of the rejection of any executory
contracts and unexpired leases to be rejected as and to the extent provided in
Section 9.1 of this Reorganization Plan.
9.5 Bar Date for Filing Proofs of Claim Relating to Executory Contracts
and Unexpired Leases Rejected Pursuant to the Reorganization Plan. Claims
arising out of the rejection of an executory contract or unexpired lease
pursuant to Section 9.1 of this Reorganization Plan must be filed with the Court
no later than the later of (i) twenty (20) days after the Effective Date, and
(ii) thirty (30) days after entry of an order rejecting such executory contract
or lease. Any Claims not filed within such time period will be forever barred
from assertion against any of the applicable Reorganizing Debtors and/or the
Estates.
9.6 Survival of Debtors' Corporate Indemnities. Any obligations of any
of the Reorganizing Debtors pursuant to the applicable Reorganizing Debtor's
corporate charters and bylaws or agreements entered into any time prior to the
Effective Date, to indemnify the Specified Personnel, with respect to all
present and future actions, suits and proceedings against such Reorganizing
Debtor or such Specified Personnel, based upon any act or omission for or on
behalf of such Reorganizing Debtor, shall not be discharged or impaired by
confirmation of this Reorganization Plan. Such obligations shall be deemed and
treated as executory contracts to be assumed by the applicable Reorganizing
Debtor pursuant to this Reorganization Plan and deemed to be included on the
Rejecting Debtors' Schedule of Assumed Contracts and Leases (to the extent not
otherwise assumed), and shall continue as obligations of the applicable
Reorganizing Debtor. To the extent a Reorganizing Debtor is entitled to assert a
Claim against Specified Personnel (whether directly or derivatively) and such
Specified Personnel is entitled to indemnification, such Claim against Specified
Personnel is released, waived and discharged.
9.7 Reservation of Rights Under Insurance Policies and Bonds. Nothing
in this Reorganization Plan, including the discharge and release of the
Reorganizing Debtors as provided in this Reorganization Plan, shall diminish,
impair or otherwise affect the enforceability by beneficiaries of (i) any
insurance policies that may cover Claims against any Reorganizing Debtors, or
(ii) any bonds issued to assure the performance of any Reorganizing Debtors, nor
shall anything contained herein constitute or be deemed to constitute a waiver
of any cause of action that the Reorganizing Debtors or any entity may hold
against any insurers or issuers of bonds under any such policies of insurance or
bonds. To the extent any insurance policy or bond is deemed to be an executory
contract, such insurance policy or bond shall be deemed assumed in accordance
with Article IX of the Reorganization Plan. Notwithstanding the foregoing, the
Reorganizing Debtors do not assume any payment or other obligations to any
insurers or issuers or bonds, and any agreements or provisions of policies or
bonds imposing payment or other obligations upon the Reorganizing Debtors shall
only be assumed as provided pursuant to a separate order of the Court.
ARTICLE X
CONDITIONS PRECEDENT TO THE CONFIRMATION DATE AND THE EFFECTIVE DATE
10.1 Conditions to Confirmation. Each of the following is a condition
to the Confirmation Date:
(a) the entry of a Final Order finding that the Disclosure
Statement contains adequate information pursuant to section 1125 of the
Bankruptcy Code;
(b) the proposed Confirmation Order shall be in form and
substance, reasonably acceptable to the Reorganizing Debtors and Heber Debtors;
(c) all provisions, terms and conditions hereof are approved
in the Confirmation Order;
(d) the Confirmation Order shall contain a finding that any
Intercompany Claim held by a Reorganizing Debtor, Liquidating Debtor or Heber
Debtor is the exclusive property of such Reorganizing Debtor or Liquidating
Debtor pursuant to section 541 of the Bankruptcy Code;
(e) the Confirmation Order shall contain a ruling that each of
the Liquidating Debtors Claims against (i) the Reorganizing Debtors and Heber
Debtors and any of their respective present or former officers, directors,
employees, attorneys, accountants, financial advisors, investment bankers or
agents and (ii) the other persons or entities identified in Section 11.10 of
this Reorganization Plan will be fully settled and released as of the Effective
Date;
(f) the Confirmation Order shall contain a ruling that each of
the Reorganizing Debtors and Heber Debtors Claims against (i) the Reorganizing
Debtors and Heber Debtors and any of their respective present or former
officers, directors, employees, attorneys, accountants, financial advisors,
investment bankers or agents and (ii) the other persons or entities identified
in Section 11.10 of this Reorganization Plan will be fully settled and released
or, with respect to Claims against the Reorganizing Debtors or Heber Debtors,
treated in accordance with Sections 4.9(b)(II) and 4.9(b)(III) of this
Reorganization Plan; and
(g) the Confirmation Order shall contain a finding that the
Geothermal Sale shall be deemed to be incorporated into and consummated under
this Reorganization Plan for all purposes including, without limitation, section
1146 of the Bankruptcy Code.
10.2 Conditions Precedent to the Effective Date. Each of the following
is a condition precedent to the Effective Date of this Reorganization Plan:
(a) The Confirmation Order shall: (i) have been entered by the
Court and become a Final Order, (ii) be in form and substance satisfactory to
the Reorganizing Debtors and Heber Debtors and (iii) provide that the
Liquidating Debtors, the Reorganizing Debtors, the Reorganized Debtors, the
Heber Debtors and the Reorganized Heber Debtors are authorized and directed to
take all actions necessary or appropriate to enter into, implement and
consummate the contracts, instruments, releases, leases, indentures and other
agreements or documents created in connection with the Liquidation Plan and the
Reorganization Plan;
(b) The conditions precedent to the Effective Date of the
Liquidation Plan shall have been satisfied or waived in accordance with the
terms and provisions of the Liquidation Plan;
(c) All conditions precedent to the closing of the Geothermal
Sale or an alternative sale of some or all of the Heber Debtors or their assets
shall have been satisfied;
(d) All documents, instruments and agreements necessary to
implement the ESOP for Reorganized Covanta shall have been executed and
delivered by the parties thereto;
(e) All regulatory approval necessary or desirable to
effectuate the Reorganization Plan and the transactions contemplated hereunder
shall have been obtained;
(f) The Reorganized Covanta Common Stock shall have been
delivered to the ESOP in accordance with the terms of this Reorganization Plan,
Reorganized Covanta shall have delivered the Reorganization Plan Equity
Securities and Warrants as contemplated hereunder and the equity securities of
all the other Reorganized Debtors shall have been deemed to revert to ownership
by the same entity by which they were held prior to the applicable Petition
Date;
(g) Reorganized Covanta shall have taken all steps necessary
in its discretion to enable its conversion to an S Corporation effective as of
January 1, 2004;
(h) The Exit Financing Agreements shall have been executed and
delivered by the parties thereto, and shall be in full force and effect in
accordance with the terms thereof;
(i) The Reorganized Debtors shall have sufficient Cash (i) to
make payment of the estimated Exit Costs, including, without limitation, all
Allowed Administrative Expense Claims, Allowed Priority Non-Tax Claims, Allowed
Convenience Claims, (ii) to transfer Cash such that CPIH shall have $2 million
in accounts under its control, and (iii) to deposit Cash in the Disputed Claims
Reserve in respect of any Administrative Expense Claims and Priority Non-Tax
Claims that are Disputed Claims;
(j) All documents, instruments and agreements provided for
under, or necessary to implement, this Reorganization Plan shall have been
executed and delivered by the parties thereto, in form and substance
satisfactory to the Reorganizing Debtors and Heber Debtors, unless such
execution or delivery has been waived by the parties benefited thereby.
10.3 Waiver of Conditions. The Reorganizing Debtors and Heber
Debtors may waive any of the foregoing conditions set forth in Section 10.1 or
Section 10.2 of this Reorganization Plan without leave of or notice to the Court
and without any formal action other than proceeding with confirmation of this
Reorganization Plan or emergence from bankruptcy.
10.4 Failure to Satisfy or Waiver of Conditions Precedent. In the event
that any or all of the conditions specified in Section 10.1 or 10.2 of this
Reorganization Plan have not been satisfied or waived in accordance with the
provisions of this Article X on or before December 19, 2003 (which date may be
extended by the Reorganizing Debtors and Heber Debtors, and upon notification
submitted by the Reorganizing Debtors and Heber Debtors to the Court), (a) the
Confirmation Order shall be vacated (except as it may relate to the Heber
Debtors), (b) no distributions under the Reorganization Plan shall be made
(except as they may relate to the Heber Debtors), (c) the Reorganizing Debtors
and all holders of Claims and Equity Interests shall be restored to the status
quo ante as of the day immediately preceding the Confirmation Date as though
such date never occurred, and (d) all the Reorganizing Debtors' respective
obligations with respect to the Claims and Equity Interests shall remain
unchanged and nothing contained herein or in the Disclosure Statement shall be
deemed an admission or statement against interest or to constitute a waiver or
release of any claims by or against any Reorganizing Debtor or any other Person
or to prejudice in any manner the rights of any Reorganizing Debtor or any
Person in any further proceedings involving any Reorganizing Debtor or Person.
ARTICLE XI
EFFECT OF CONFIRMATION
11.1 Revesting of Assets. Upon the Effective Date, pursuant to sections
1141(b) and (c) of the Bankruptcy Code, except for leases and executory
contracts that have not yet been assumed or rejected (which leases and contracts
shall be deemed vested when and if assumed), all property of each Reorganizing
Debtor and Heber Debtor's Estate shall vest in the applicable Reorganized Debtor
and Heber Debtor free and clear of all Claims, Liens, encumbrances, charges and
other interests, except as provided herein or pursuant to any of the Plan
Documents. Each Reorganized Debtor and Reorganized Heber Debtor may operate its
businesses and may use, acquire and dispose of property free of any restrictions
of the Bankruptcy Code or the Bankruptcy Rules and in all respects as if there
were no pending cases under any chapter or provision of the Bankruptcy Code,
except as provided herein.
11.2 Discharge of Claims and Cancellation of Equity Interests. Except
as otherwise provided herein or in the Confirmation Order, the rights afforded
in this Reorganization Plan and the entitlement to receive payments and
distributions to be made hereunder shall discharge all existing Claims and
Interests, of any kind, nature or description whatsoever against or in each of
the Reorganizing Debtors and Heber Debtors or any of their assets or properties
to the fullest extent permitted by section 1141 of the Bankruptcy Code. Except
as provided in this Reorganization Plan, on the Effective Date, all existing
Claims against each of the Reorganizing Debtors and Heber Debtors and Equity
Interests in the Reorganizing Debtors and Heber Debtors shall be, and shall be
deemed to be, discharged or canceled and each holder (as well as trustees and
agents on behalf of all such holders) of a Claim or Equity Interest shall be
precluded and enjoined from asserting against the Reorganized Debtors and
Reorganized Heber Debtors, or any of their assets or properties, any Claim or
Equity Interest based upon any act or omission, transaction or other activity of
any kind or nature that occurred prior to the Confirmation Date, whether or not
(i) such holder has filed a Proof of Claim or Equity Interest, (ii) a Claim
based on such Claim or Equity Interest is Allowed, or (iii) the holder of the
Claim or Equity Interest has accepted the Reorganization Plan.
11.3 Discharge of Reorganizing Debtors and Heber Debtors. Upon the
Effective Date and in consideration of the distributions to be made hereunder,
except as otherwise expressly provided herein, each holder (as well as any
trustees and agents on behalf of each holder) of a Claim or Equity Interest of
such holder shall be deemed to have forever waived, released and discharged each
of the Reorganizing Debtors and Heber Debtors, to the fullest extent permitted
by section 1141 of the Bankruptcy Code, of and from any and all Claims, Equity
Interests, rights and liabilities (other than the right to enforce the
Reorganizing Debtors or Reorganized Debtors and the Heber Debtors or Reorganized
Heber Debtors obligations hereunder or under the Plan Documents) that arose
prior to the Confirmation Date, whether existing in law or equity, whether based
on fraud, contract or otherwise, liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then
existing or thereafter arising, whether based in whole or in part on any act,
omission or occurrence taking place on or before the Confirmation Date. Upon the
Effective Date, all such persons shall be forever precluded and enjoined,
pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting
any such discharged Claim against or canceled Equity Interest in each of the
Reorganizing Debtors and Heber Debtors.
11.4 Binding Effect. Except as otherwise provided in section 1141(d)(3)
of the Bankruptcy Code, on and after the Confirmation Date, and subject to the
Effective Date, the provisions of this Reorganization Plan shall bind all
present and former holders of a Claim against, or Equity Interest in, the
applicable Reorganizing Debtor or Heber Debtor and its respective successors and
assigns, whether or not the Claim or Equity Interest of such holder is Impaired
under this Reorganization Plan and whether or not such holder has filed a Proof
of Claim or Equity Interest or accepted this Reorganization Plan.
11.5 Term of Injunctions or Stays. Unless otherwise provided herein,
all injunctions or stays arising under section 105 or 362 of the Bankruptcy
Code, any order entered during the Chapter 11 Cases under section 105 or 362 of
the Bankruptcy Code or otherwise, and in existence on the Confirmation Date,
shall remain in full force and effect until the later of the Effective Date and
the date indicated in such order.
11.6 Injunction Against Interference with Plan. Upon the entry of the
Confirmation Order, all holders of Claims and Equity Interests and other parties
in interest, along with their respective present and former employees, agents,
officers, directors and principals, shall be enjoined from taking any actions to
interfere with the implementation or consummation of this Reorganization Plan.
11.7 Exculpation. Notwithstanding anything herein to the contrary, as
of the Effective Date, none of (i) the Reorganizing Debtors, Reorganized
Debtors, Heber Debtors or Reorganized Heber Debtors or their respective
officers, directors and employees, (ii) the Specified Personnel, (iii) the
Committee and any subcommittee thereof, (iv) the Agent Banks, the DIP Agents,
the steering committee for the holders of the Secured Bank Claims and the
Bondholders Committee, (v) the accountants, financial advisors, investment
bankers, and attorneys for the Reorganizing Debtors, Reorganized Debtors, Heber
Debtors or Reorganized Heber Debtors, and (vi) the directors, officers,
employees, partners, members, agents, representatives, accountants, financial
advisors, investment bankers, attorneys or affiliates for any of the persons or
entities described in (i), (iii), (iv) or (v) of this Section 11.7 shall have or
incur any liability to any holder of a Claim or an Interest, or any other party
in interest, or any of their respective agents, employees, representatives,
financial advisors, attorneys, or affiliates, or any of their successors or
assigns, for any act or omission in connection with, relating to, or arising out
of the commencement or conduct of the Chapter 11 Cases; the liquidations of the
Liquidating Debtors listed on Exhibit 2 hereto; formulating, negotiating or
implementing the Reorganization Plan; formulating, negotiating or implementing
the Geothermal Sale under the Reorganization Plan; the solicitation of
acceptances of the Reorganization Plan; the pursuit of confirmation of the
Reorganization Plan; the confirmation, consummation or administration of the
Reorganization Plan or the property to be distributed under the Reorganization
Plan, except for their gross negligence or willful misconduct, and in all
respects shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Reorganization Plan.
11.8 Rights of Action. On and after the Effective Date, and except as
may otherwise be agreed to by the Reorganizing Debtors or as provided in this
Reorganization Plan, the Reorganized Debtors will retain and have the exclusive
right to enforce any and all present or future rights, claims or causes of
action against any Person and rights of the Reorganizing Debtors that arose
before or after the applicable Petition Date, including, but not limited to,
rights, claims, causes of action, avoiding powers, suits and proceedings arising
under sections 544, 545, 548, 549, 550 and 553 of the Bankruptcy Code; and the
Heber Debtors' right to enforce any and all present or future rights, claims or
causes of action against any Person and the rights of the Heber Debtors that
arose before or after the applicable Petition Date, including, but not limited
to, rights, claims, causes of action, avoiding powers, suits and proceedings
arising under sections 544, 545, 548, 549, 550 and 553 of the Bankruptcy Code,
shall be assigned to the Reorganized Debtors. The Reorganized Debtors may
pursue, abandon, settle or release any or all such rights of action, as they
deem appropriate, without the need to obtain approval or any other or further
relief from the Court. The Reorganized Debtors may, in their discretion, offset
any such claim held against a Person against any payment due such Person under
this Reorganization Plan; provided, however, that any claims of any of the
Reorganizing Debtors arising before the applicable Petition Date shall first be
offset against Claims against any of the Reorganized Debtors arising before the
applicable Petition Date.
11.9 Injunction. Upon the Effective Date with respect to the
Reorganization Plan and except as otherwise provided herein or in the
Confirmation Order, all persons who have held, hold, or may hold Claims against
or Equity Interests in the Reorganizing Debtors or Heber Debtors, and all other
parties in interest in the Chapter 11 Cases, along with their respective present
or former employees, agents, officers, directors or principals, shall be
permanently enjoined on and after the Effective Date from directly or indirectly
(i) commencing or continuing in any manner any action or other proceeding of any
kind to collect or recover any property on account of any such Claim or Equity
Interest against any such Reorganizing Debtor, Reorganized Debtors, Heber
Debtor, Reorganized Heber Debtors or Person entitled to exculpation under
Section 11.7 hereof, (ii) enforcing, attaching, collecting or recovering by any
manner or means of any judgment, award, decree, or order to collect or recover
any property on account of any such Claim or Equity Interest against any such
Reorganizing Debtor, Reorganized Debtors, Heber Debtors or Reorganized Heber
Debtors, (iii) creating, perfecting, or enforcing any encumbrance of any kind
against any such Reorganizing Debtor, Reorganized Debtor, Heber Debtor or
Reorganized Heber Debtor on account of such Claim or Equity Interest, (iv)
except for recoupment, asserting any right of setoff or subrogation of any kind
against any obligation due any such Reorganizing Debtor, Reorganized Debtor,
Heber Debtor or Reorganized Heber Debtor or against the property or interests in
property of any such Reorganizing Debtor, Reorganized Debtor, Heber Debtor or
Reorganized Heber Debtor on account of any such Claim or Equity Interest, (v)
commencing or continuing any action against the Reorganized Debtors or Heber
Debtors in any manner or forum in respect of such Claim or Equity Interest that
does not comply or is inconsistent with the Reorganization Plan, and (vi) taking
any actions to interfere with the implementation or consummation of this
Reorganization Plan; provided that nothing herein shall prohibit any holder of a
Claim from prosecuting a properly completed and filed proof of claim in the
Chapter 11 Cases. In no event shall the Reorganized Debtors, Reorganized Heber
Debtors or any Person entitled to exculpation under Section 11.7 hereof have any
liability or obligation for any Claim against or Equity Interest in any of the
Reorganizing Debtors or Heber Debtors arising prior to the Effective Date, other
than in accordance with the provisions of this Reorganization Plan. In addition,
except as otherwise provided in this Reorganization Plan or the Confirmation
Order, on and after the Effective Date, any individual, firm, corporation,
limited liability company, partnership, company, trust or other entity,
including any successor of such entity, shall be permanently enjoined from
commencing or continuing in any manner, any litigation against the Reorganized
Debtors, Reorganized Heber Debtors or any Person entitled to exculpation under
Section 11.7 hereof on account of or in respect of any of the Reorganizing
Debtors or Heber Debtors' prepetition liabilities or other liabilities satisfied
pursuant to this Reorganization Plan. By accepting Distributions pursuant to
this Reorganization Plan, each holder of an Allowed Claim or Allowed Equity
Interest receiving Distributions pursuant to the Reorganization Plan will be
deemed to have specifically consented to the injunctions set forth in this
Section 11.9.
11.10 Release. As of the Effective Date, the Reorganizing Debtors and
Heber Debtors, on behalf of themselves and their Estates, shall be deemed to
release unconditionally all claims, obligations, suits, judgments, damages,
rights, causes of action, and liabilities whatsoever, against the Reorganizing
Debtors' or Heber Debtors' present or former officers, directors, employees,
partners, members, advisors, attorneys, financial advisors, accountants,
investment bankers and other professionals, and the Committee's members,
advisors, attorneys, financial advisors, investment bankers, accountants and
other professionals, in each case whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, in law, equity or otherwise, based in
whole or in part upon actions taken with respect to any omission, transaction,
event, or other occurrence taking place on or prior to the Effective Date in any
way relating to the Reorganizing Debtors or Heber Debtors, the Chapter 11 Cases
or the Reorganization Plan.
ARTICLE XII
RETENTION OF JURISDICTION
12.1 Jurisdiction of Court. The Court shall retain exclusive
jurisdiction of all matters arising under, arising out of, or related to, the
Chapter 11 Cases and this Reorganization Plan pursuant to, and for the purposes
of, sections 105(a) and 1142 of the Bankruptcy Code and for, among other things,
the following non-exclusive purposes:
(a) to determine the allowance or classification of Claims and
to hear and determine any objections thereto;
(b) to hear and determine any motions for the assumption,
assumption and assignment or rejection of executory contracts or unexpired
leases, and the allowance of any Claims resulting therefrom;
(c) to determine any and all motions, adversary proceedings,
applications, contested matters and other litigated matters in connection with
the Chapter 11 Cases that may be pending in the Court on, or initiated after,
the Effective Date;
(d) to enter and implement such orders as may be appropriate
in the event the Confirmation Order is for any reason stayed, revoked, modified,
or vacated;
(e) to issue such orders in aid of the execution,
implementation and consummation of this Reorganization Plan to the extent
authorized by section 1142 of the Bankruptcy Code or otherwise;
(f) to construe and take any action to enforce this
Reorganization Plan;
(g) to reconcile any inconsistency in any order of the Court,
including, without limitation, the Confirmation Order;
(h) to modify the Reorganization Plan pursuant to section 1127
of the Bankruptcy Code, or to remedy any apparent non-material defect or
omission in this Reorganization Plan, or to reconcile any non-material
inconsistency in the Reorganization Plan so as to carry out its intent and
purposes;
(i) to hear and determine all applications for compensation
and reimbursement of expenses of professionals under sections 330, 331, and
503(b) of the Bankruptcy Code;
(j) to determine any other requests for payment of Priority
Tax Claims, Priority Non-Tax Claims or Administrative Expense Claims;
(k) to hear and determine disputes arising in connection with
the interpretation, implementation, or enforcement of this Reorganization Plan;
(l) to hear and determine all matters relating to the 9.25%
Debentures Adversary Proceeding, including any disputes arising in connection
with the interpretation, implementation or enforcement of any settlement
agreement related thereto;
(m) to consider and act on the compromise and settlement or
payment of any Claim against the Reorganizing Debtors;
(n) to recover all assets of Reorganizing Debtors and Heber
Debtors and property of the Estates, wherever located;
(o) to determine all questions and disputes regarding title to
the assets of the Reorganizing Debtors and Heber Debtors or their Estates;
(p) to issue injunctions, enter and implement other orders or
to take such other actions as may be necessary or appropriate to restrain
interference by any entity with the consummation, implementation or enforcement
of the Reorganization Plan or the Confirmation Order;
(q) to remedy any breach or default occurring under this
Reorganization Plan;
(r) to resolve and finally determine all disputes that may
relate to, impact on or arise in connection with, this Reorganization Plan;
(s) to hear and determine matters concerning state, local, and
federal taxes for any period of time, including, without limitation, pursuant to
sections 346, 505, 1129 and 1146 of the Bankruptcy Code (including any requests
for expedited determinations under section 505(b) of the Bankruptcy Code filed,
or to be filed, with respect to tax returns for any and all taxable periods
ending after each of the applicable Petition Dates through, and including, the
final Distribution Date);
(t) to determine such other matters and for such other
purposes as may be provided in the Confirmation Order;
(u) to hear any other matter consistent with the provisions of
the Bankruptcy Code; and
(v) to enter a final decree closing the Chapter 11 Cases.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Deletion of Classes and Subclasses. Any class or subclass of
Claims that does not contain as an element thereof an Allowed Claim or a Claim
temporarily allowed under Bankruptcy Rule 3018 as of the date of the
commencement of the Confirmation Hearing shall be deemed deleted from this
Reorganization Plan for purposes of voting to accept or reject this
Reorganization Plan and for purposes of determining acceptance or rejection of
this Reorganization Plan by such class or subclass under section 1129(a)(8) of
the Bankruptcy Code.
13.2 Dissolution of the Committee. On the Effective Date, the Committee
shall be dissolved and the members thereof shall be released and discharged of
and from all further authority, duties, responsibilities, and obligations
related to and arising from and in connection with the Chapter 11 Cases, and the
retention or employment of the Committee's attorneys, accountants, and other
agents, shall terminate.
13.3 Effectuating Documents and Further Transactions. The chief
executive officer of each of the Reorganizing Debtors and Heber Debtors, or his
or her designee, shall be authorized to execute, deliver, file, or record such
contracts, instruments, releases and other agreements or documents and take such
actions on behalf of the Reorganizing Debtors and Heber Debtors as may be
necessary or appropriate to effectuate and further evidence the terms and
conditions of this Reorganization Plan, without any further action by or
approval of the Board of Directors or other governing body of the Reorganizing
Debtors or Heber Debtors.
13.4 Payment of Statutory Fees. All fees payable pursuant to section
1930 of Title 28 of the United States Code shall be paid through the entry of a
final decree closing these cases.
13.5 Modification of Plan. Subject to the provisions of Section 5.5 of
this Reorganization Plan, the Reorganizing Debtors and Heber Debtors reserve the
right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend
or modify this Reorganization Plan at any time prior to the entry of the
Confirmation Order. Additionally, the Reorganizing Debtors and Heber Debtors
reserve the right to alter, amend, modify, revoke or withdraw the Reorganization
Plan as it applies to any particular Reorganizing Debtor or Heber Debtor,
including without limitation as a result of the consummation of the Geothermal
Sale pursuant to section 363 of the Bankruptcy Code on or prior to the
Confirmation Date. Additionally, the Reorganizing Debtors and Heber Debtors
reserve the right to seek confirmation of the Reorganization Plan or a separate
reorganization plan with substantially similar terms with respect to only
certain of the Reorganized Debtors and/or Heber Debtors, and to alter, amend,
modify, revoke or withdraw the Reorganization Plan, in whole or in part, for
such purpose.
Addtionally, the Reorganizing Debtors reserve their rights to
redesignate Debtors as Reorganizing Debtors, Heber Debtors or Liquidating
Debtors at any time prior to ten (10) days prior to the Confirmation Hearing.
Holders of Claims or Equity Interests who are entitled to vote on the
Reorganization Plan or Liquidation Plan and who are affected by any such
redesignation shall have five (5) days from the notice of such redesignation to
vote to accept or reject the Reorganization Plan or the Liquidation Plan, as the
case may be. The Reorganizing Debtors also reserve the right to withdraw prior
to the Confirmation Hearing one or more Reorganizing Debtors or Heber Debtors
from the Reorganization Plan, and to thereafter file a plan solely with respect
to such Debtor or Debtors.
After the entry of the Confirmation Order, the Reorganizing
Debtors and Heber Debtors may, upon order of the Court, amend or modify this
Reorganization Plan, in accordance with section 1127(b) of the Bankruptcy Code,
or remedy any defect or omission or reconcile any inconsistency in this
Reorganization Plan in such manner as may be necessary to carry out the purpose
and intent of this Reorganization Plan. A holder of an Allowed Claim or Allowed
Equity Interest that is deemed to have accepted this Reorganization Plan shall
be deemed to have accepted this Reorganization Plan as modified if the proposed
modification does not materially and adversely change the treatment of the Claim
or Equity Interest of such holder.
13.6 Courts of Competent Jurisdiction. If the Court abstains from
exercising, or declines to exercise, jurisdiction or is otherwise without
jurisdiction over any matter arising out of this Reorganization Plan, such
abstention, refusal or failure of jurisdiction shall have no effect upon and
shall not control, prohibit or limit the exercise of jurisdiction by any other
Court having competent jurisdiction with respect to such matter.
13.7 Exemption From Transfer Taxes. Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of notes or equity
securities under or in connection with the Reorganization Plan, the creation of
any mortgage, deed of trust or other security interest, the making or assignment
of any lease or sublease, or the making or delivery of any deed or other
instrument of transfer under, in furtherance of, or in connection with the
Reorganization Plan (including without limitation the Geothermal Sale or other
sale of some or all of the Heber Debtors or their assets), including any merger
agreements or agreements of consolidation, deeds, bills of sale or assignments
executed in connection with any of the transactions contemplated under the
Reorganization Plan, the Geothermal Sale or other sale of some or all of the
Heber Debtors or their assets shall not be subject to any stamp, real estate
transfer, mortgage recording or other similar tax.
13.8 Rules of Construction. For purposes of this Reorganization Plan,
the following rules of interpretation apply:
(a) The words "herein," "hereof," "hereto," "hereunder" and
others of similar import refer to this Reorganization Plan as a whole and not to
any particular Section, subsection, or clause contained in this Reorganization
Plan;
(b) Wherever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and
the plural and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter;
(c) Any reference in this Reorganization Plan to a contract,
instrument, release, indenture or other agreement or document being in a
particular form or on particular terms and conditions means that such document
shall be substantially in such form or substantially on such terms and
conditions;
(d) Any reference in this Reorganization Plan to an existing
document or exhibit filed or to be filed means such document or exhibit, as it
may have been or may be amended, modified or supplemented;
(e) Unless otherwise specified, all references in this
Reorganization Plan to Sections, Articles, Schedules and Exhibits are references
to Sections, Articles, Schedules and Exhibits of or to this Reorganization Plan;
(f) Captions and headings to Articles and Sections are
inserted for convenience of reference only are not intended to be a part of or
to affect the interpretation of this Reorganization Plan; and
(g) Unless otherwise expressly provided, the rules of
construction set forth in section 102 of the Bankruptcy Code and in the
Bankruptcy Rules shall apply to this Reorganization Plan.
13.9 Computation of Time. In computing any period of time prescribed or
allowed by this Reorganization Plan, unless otherwise expressly provided, the
provisions of Bankruptcy Rule 9006 shall apply.
13.10 Successors and Assigns. The rights, benefits and obligations of any entity
named or referred to in the Reorganization Plan shall be bind on, and
shall inure to the benefit of, any heir, executor, administrator, successor or
assign
of such entity.
13.11 Notices. Any notices to or requests of the Reorganizing Debtors
or Heber Debtors by parties in interest under or in connection with this
Reorganization Plan shall be in writing and served either by (a) certified mail,
return receipt requested, postage prepaid, (b) hand delivery, or (c) reputable
overnight delivery service, all charges prepaid, and shall be deemed to have
been given when received by the following parties:
Covanta Energy Corporation
c/o CLEARY GOTTLIEB STEEN & HAMLTON
One Liberty Plaza
New York, New York 10006
Attn: Deborah M. Buell, Esq.
James L. Bromley, Esq.
and
Covanta Energy Corporation
c/o JENNER & BLOCK, LLC
One IBM Plaza
Chicago, Illinois 60611-7603
Attn: Vincent E. Lazar, Esq.
13.12 Severability. If, prior to the Confirmation Date, any term or
provision of this Reorganization Plan is determined by the Court to be invalid,
void or unenforceable, the Court will have the power to alter and interpret such
term or provision to make it valid or enforceable to the maximum extent
practicable, consistent with the original purpose of the term or provision held
to be invalid, void or unenforceable, and such term or provision will then be
applicable as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions of this
Reorganization Plan will remain in full force and effect and will in no way be
affected, impaired or invalidated by such holding alteration or interpretation.
The Confirmation Order will constitute a judicial interpretation that each term
and provision of this Reorganization Plan, as it may have been altered or
interpreted in accordance with the forgoing, is valid and enforceable pursuant
to its terms. Additionally, if the Court determines that the Reorganization
Plan, as it applies to any particular Reorganizing Debtor, is not confirmable
pursuant to section 1129 of the Bankruptcy Code (and cannot be altered or
interpreted in a way that makes it confirmable), such determination shall not
limit or affect (a) the confirmability of the Reorganization Plan as it applies
to any other Reorganizing Debtor or (b) the Reorganizing Debtors' ability to
modify the Reorganization Plan, as it applies to any particular Reorganizing
Debtor, to satisfy the confirmation requirements of section 1129 of the
Bankruptcy Code.
13.13 Governing Law. Except to the extent the Bankruptcy Code or
Bankruptcy Rules are applicable, the rights and obligations arising under this
Reorganization Plan shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
13.14 Exhibits. All Exhibits and Schedules to this Reorganization Plan
are incorporated into and are a part of this Reorganization Plan as if set forth
in full herein.
13.15 Counterparts. This Reorganization Plan may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement.
Dated: September 8, 2003
COVANTA ENERGY CORPORATION
By: /s/ Scott G. Mackin
-------------------------------------
COVANTA ACQUISITION, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ALEXANDRIA/ARLINGTON, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA BABYLON, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA BESSEMER, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA BRISTOL, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA CUNNINGHAM ENVIRONMENTAL
SUPPORT SERVICES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY AMERICAS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY CONSTRUCTION, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY GROUP, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY INTERNATIONAL, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY RESOURCE CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY SERVICES OF NEW JERSEY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY SERVICES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENERGY WEST, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ENGINEERING SERVICES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA FAIRFAX, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA GEOTHERMAL OPERATIONS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HEBER FIELD ENERGY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HENNEPIN ENERGY RESOURCE CO., L.P.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HILLSBOROUGH, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HONOLULU RESOURCE RECOVERY VENTURE
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HUNTINGTON LIMITED PARTNERSHIP
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HUNTINGTON RESOURCE RECOVERY
ONE CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HUNTINGTON RESOURCE RECOVERY
SEVEN CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HUNTSVILLE, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HYDRO ENERGY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HYDRO OPERATIONS WEST, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA HYDRO OPERATIONS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA IMPERIAL POWER SERVICES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA INDIANAPOLIS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA KENT, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA LAKE, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA LANCASTER, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA LEE, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA LONG ISLAND, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA MARION LAND CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA MARION, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA MID-CONN, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA MONTGOMERY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA NEW MARTINSVILLE HYDRO-OPERATIONS
CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA OAHU WASTE ENERGY RECOVERY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA FIVE CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA FOUR CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA LIMITED PARTNERSHIP
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA OPERATIONS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA THREE CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA TWO CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA ONONDAGA, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA OPERATIONS OF UNION, LLC
By: /s/ Scott G. Mackin
------------------------------------
COVANTA OPW ASSOCIATES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA OPWH, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA PASCO, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA POWER EQUITY CORP.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA POWER INTERNATIONAL HOLDINGS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA PROJECTS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA PROJECTS OF HAWAII, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA PROJECTS OF WALLINGFORD, L.P.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA RRS HOLDINGS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA SECURE SERVICES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA SIGC ENERGY II, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA SIGC ENERGY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA SIGC GEOTHERMAL OPERATIONS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA STANISLAUS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA SYSTEMS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA TAMPA BAY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA TULSA, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA UNION, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WALLINGFORD ASSOCIATES, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WARREN ENERGY RESOURCE CO., L.P.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WASTE TO ENERGY OF ITALY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WASTE TO ENERGY, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WATER HOLDINGS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WATER SYSTEMS, INC.
By: /s/ Scott G. Mackin
------------------------------------
COVANTA WATER TREATMENT SERVICES, INC.
By: /s/ Scott G. Mackin
------------------------------------
AMOR 14 CORP
By: /s/ Scott G. Mackin
------------------------------------
DSS ENVIRONMENTAL, INC.
By: /s/ Scott G. Mackin
------------------------------------
ERC ENERGY II, INC.
By: /s/ Scott G. Mackin
------------------------------------
ERC ENERGY, INC.
By: /s/ Scott G. Mackin
------------------------------------
HEBER FIELD COMPANY
By: /s/ Scott G. Mackin
------------------------------------
HEBER FIELD ENERGY II, INC.
By: /s/ Scott G. Mackin
------------------------------------
HEBER GEOTHERMAL COMPANY
By: /s/ Scott G. Mackin
------------------------------------
HEBER LOAN PARTNERS
By: /s/ Scott G. Mackin
------------------------------------
OPI QUEZON INC.
By: /s/ Scott G. Mackin
------------------------------------
SECOND IMPERIAL GEOTHERMAL CO., L.P.
By: /s/ Scott G. Mackin
------------------------------------
THREE MOUNTAIN OPERATIONS, INC.
By: /s/ Scott G. Mackin
------------------------------------
THREE MOUNTAIN POWER, LLC
By: /s/ Scott G. Mackin
------------------------------------
EXHIBITS TO THE REORGANIZATION PLAN
EXHIBIT 1 TO REORGANIZATION PLAN
SCHEDULE OF REORGANIZING DEBTORS
Debtor Case Number
------ -----------
Covanta Acquisition, Inc. 02-40861 (CB)
Covanta Alexandria/Arlington, Inc. 02-40929 (CB)
Covanta Babylon, Inc. 02-40928 (CB)
Covanta Bessemer, Inc. 02-40862 (CB)
Covanta Bristol, Inc. 02-40930 (CB)
Covanta Cunningham Environmental Support Services, Inc. 02-40863 (CB)
Covanta Energy Americas, Inc. 02-40881 (CB)
Covanta Energy Construction, Inc. 02-40870 (CB)
Covanta Energy Corporation 02-40841 (CB)
Covanta Energy Group, Inc. 03-13707 (CB)
Covanta Energy International, Inc. 03-13706 (CB)
Covanta Energy Resource Corp. 02-40915 (CB)
Covanta Energy Services of New Jersey, Inc. 02-40900 (CB)
Covanta Energy Services, Inc. 02-40899 (CB)
Covanta Energy West, Inc. 02-40871 (CB)
Covanta Engineering Services, Inc. 02-40898 (CB)
Covanta Fairfax, Inc. 02-40931 (CB)
Covanta Geothermal Operations Holdings, Inc. 02-40873 (CB)
Covanta Geothermal Operations, Inc. 02-40872 (CB)
Covanta Heber Field Energy, Inc. 02-40893 (CB)
Covanta Hennepin Energy Resource Co., L.P. 02-40906 (CB)
Covanta Hillsborough, Inc. 02-40932 (CB)
Covanta Honolulu Resource Recovery Venture 02-40905 (CB)
Covanta Huntington Limited Partnership 02-40916 (CB)
Covanta Huntington Resource Recovery One Corp. 02-40919 (CB)
Covanta Huntington Resource Recovery Seven Corp. 02-40920 (CB)
Covanta Huntsville, Inc. 02-40933 (CB)
Covanta Hydro Energy, Inc. 02-40894 (CB)
Covanta Hydro Operations West, Inc. 02-40875 (CB)
Covanta Hydro Operations, Inc. 02-40874 (CB)
Covanta Imperial Power Services, Inc. 02-40876 (CB)
Covanta Indianapolis, Inc. 02-40934 (CB)
Covanta Kent, Inc. 02-40935 (CB)
Covanta Lake, Inc. 02-40936 (CB)
Covanta Lancaster, Inc. 02-40937 (CB)
Covanta Lee, Inc. 02-40938 (CB)
Covanta Long Island, Inc. 02-40917 (CB)
Covanta Marion Land Corp. 02-40940 (CB)
Covanta Marion, Inc. 02-40939 (CB)
Covanta Mid-Conn, Inc. 02-40911 (CB)
Covanta Montgomery, Inc. 02-40941 (CB)
Covanta New Martinsville Hydro-Operations Corp. 02-40877 (CB)
Covanta Oahu Waste Energy Recovery, Inc. 02-40912 (CB)
Covanta Onondaga Five Corp. 02-40926 (CB)
Covanta Onondaga Four Corp. 02-40925 (CB)
Covanta Onondaga Limited Partnership 02-40921 (CB)
Covanta Onondaga Operations, Inc. 02-40927 (CB)
Covanta Onondaga Three Corp. 02-40924 (CB)
Covanta Onondaga Two Corp. 02-40923 (CB)
Covanta Onondaga, Inc. 02-40922 (CB)
Covanta Operations of Union, LLC 02-40909 (CB)
Covanta OPW Associates, Inc. 02-40908 (CB)
Covanta OPWH, Inc. 02-40907 (CB)
Covanta Pasco, Inc. 02-40943 (CB)
Covanta Power Equity Corp. 02-40895 (CB)
Covanta Power International Holdings, Inc. 03-13708 (CB)
Covanta Projects, Inc. 03-13709 (CB)
Covanta Projects of Hawaii, Inc. 02-40913 (CB)
Covanta Projects of Wallingford, L.P. 02-40903 (CB)
Covanta RRS Holdings, Inc. 02-40910 (CB)
Covanta Secure Services, Inc. 02-40901 (CB)
Covanta SIGC Geothermal Operations, Inc. 02-40883 (CB)
Covanta Stanislaus, Inc. 02-40944 (CB)
Covanta Systems, Inc. 02-40948 (CB)
Covanta Tampa Bay, Inc. 02-40865 (CB)
Covanta Tulsa, Inc. 02-40945 (CB)
Covanta Union, Inc. 02-40946 (CB)
Covanta Wallingford Associates, Inc. 02-40914 (CB)
Covanta Warren Energy Resource Co., L.P. 02-40904 (CB)
Covanta Waste to Energy of Italy, Inc. 02-40902 (CB)
Covanta Waste to Energy, Inc. 02-40949 (CB)
Covanta Water Holdings, Inc. 02-40866 (CB)
Covanta Water Systems, Inc. 02-40867 (CB)
Covanta Water Treatment Services, Inc. 02-40868 (CB)
DSS Environmental, Inc. 02-40869 (CB)
ERC Energy II, Inc. 02-40890 (CB)
ERC Energy, Inc. 02-40891 (CB)
Heber Field Energy II, Inc. 02-40892 (CB)
Heber Loan Partners 02-40889 (CB)
OPI Quezon, Inc. 02-40860 (CB)
Three Mountain Operations, Inc. 02-40879 (CB)
Three Mountain Power, LLC 02-40880 (CB)
EXHIBITS TO THE REORGANIZATION PLAN
EXHIBIT 2 TO REORGANIZATION PLAN
LIST OF LIQUIDATING DEBTORS
Liquidating Debtor Case Number
------------------ -----------
Alpine Food Products, Inc. 03-13679 (CB)
BDC Liquidating Corp. 03-13681 (CB)
Bouldin Development Corp. 03-13680 (CB)
Covanta Concerts Holdings, Inc. 02-16332 (CB)
Covanta Energy Sao Jeronimo, Inc. 02-40854 (CB)
Covanta Equity of Alexandria/Arlington, Inc. 03-13682 (CB)
Covanta Equity of Stanislaus, Inc. 03-13683 (CB)
Covanta Financial Services, Inc. 02-40947 (CB)
Covanta Huntington, Inc. 02-40918 (CB)
Covanta Key Largo, Inc. 02-40864 (CB)
Covanta Northwest Puerto Rico, Inc. 02-40942 (CB)
Covanta Oil & Gas, Inc. 02-40878 (CB)
Covanta Power Development of Bolivia, Inc. 02-40856 (CB)
Covanta Power Development, Inc. 02-40855 (CB)
Covanta Secure Services USA, Inc. 02-40896 (CB)
Covanta Waste Solutions, Inc. 02-40897 (CB)
Doggie Diner, Inc. 03-13684 (CB)
Gulf Coast Catering Company, Inc. 03-13685 (CB)
J.R. Jack's Construction Corporation 02-40857 (CB)
Lenzar Electro-Optics, Inc. 02-40832 (CB)
Logistics Operations, Inc. 03-13688 (CB)
Offshore Food Service, Inc. 03-13694 (CB)
OFS Equity of Alexandria/Arlington, Inc. 03-13687 (CB)
OFS Equity of Babylon, Inc. 03-13690 (CB)
OFS Equity of Delaware, Inc. 03-13689 (CB)
OFS Equity of Huntington, Inc. 03-13691 (CB)
OFS Equity of Indianapolis, Inc. 03-13693 (CB)
OFS Equity of Stanislaus, Inc. 03-13692 (CB)
Ogden Allied Abatement & Decontamination Service, Inc. 02-40827 (CB)
Ogden Allied Maintenance Corp. 02-40828 (CB)
Ogden Allied Payroll Services, Inc. 02-40835 (CB)
Ogden Attractions, Inc. 02-40836 (CB)
Ogden Aviation Distributing Corp. 02-40829 (CB)
Ogden Aviation Fueling Company of Virginia, Inc. 02-40837 (CB)
Ogden Aviation Security Services of Indiana, Inc. 03-13695 (CB)
Ogden Aviation Service Company of Colorado, Inc. 02-40839 (CB)
Ogden Aviation Service Company of Pennsylvania, Inc. 02-40834 (CB)
Ogden Aviation Service International Corporation 02-40830 (CB)
Ogden Aviation Terminal Services, Inc. 03-13696 (CB)
Ogden Aviation, Inc. 02-40838 (CB)
Ogden Cargo Spain, Inc. 02-40843 (CB)
Ogden Central and South America, Inc. 02-40844 (CB)
Ogden Cisco, Inc. 03-13698 (CB)
Ogden Communications, Inc. 03-13697 (CB)
Ogden Constructors, Inc. 02-40858 (CB)
Ogden Environmental & Energy Services Co., Inc. 02-40859 (CB)
Ogden Facility Holdings, Inc. 02-40845 (CB)
Ogden Facility Management Corporation of Anaheim 02-40846 (CB)
Ogden Facility Management Corporation of West Virginia 03-13699 (CB)
Ogden Film and Theatre, Inc. 02-40847 (CB)
Ogden Firehole Entertainment Corp. 02-40848 (CB)
Ogden Food Service Corporation of Milwaukee, Inc. 03-13701 (CB)
Ogden International Europe, Inc. 02-40849 (CB)
Ogden Leisure, Inc. 03-13700 (CB)
Ogden Management Services, Inc. 03-13702 (CB)
Ogden New York Services, Inc. 02-40826 (CB)
Ogden Pipeline Service Corporation 03-13704 (CB)
Ogden Services Corporation 02-40850 (CB)
Ogden Support Services, Inc. 02-40851 (CB)
Ogden Technology Services Corporation 03-13703 (CB)
Ogden Transition Corporation 03-13705 (CB)
PA Aviation Fuel Holdings, Inc. 02-40852 (CB)
Philadelphia Fuel Facilities Corporation 02-40853 (CB)
EXHIBITS TO THE REORGANIZATION PLAN
EXHIBIT 3 TO REORGANIZATION PLAN
LIST OF REORGANIZING DEBTORS FILING ON
INITIAL PETITION DATE AND SUBSEQUENT PETITION DATE
SCHEDULE OF REORGANIZING DEBTORS FILING ON APRIL 1, 2002
(THE INITIAL PETITION DATE)
Reorganizing Debtor Case Number
------------------- -----------
Covanta Acquisition, Inc. 02-40861 (CB)
Covanta Alexandria/Arlington, Inc. 02-40929 (CB)
Covanta Babylon, Inc. 02-40928 (CB)
Covanta Bessemer, Inc. 02-40862 (CB)
Covanta Bristol, Inc. 02-40930 (CB)
Covanta Cunningham Environmental Support Services, Inc. 02-40863 (CB)
Covanta Energy Americas, Inc. 02-40881 (CB)
Covanta Energy Construction, Inc. 02-40870 (CB)
Covanta Energy Corporation 02-40841 (CB)
Covanta Energy Resource Corp. 02-40915 (CB)
Covanta Energy Services of New Jersey, Inc. 02-40900 (CB)
Covanta Energy Services, Inc. 02-40899 (CB)
Covanta Energy West, Inc. 02-40871 (CB)
Covanta Engineering Services, Inc. 02-40898 (CB)
Covanta Fairfax, Inc. 02-40931 (CB)
Covanta Geothermal Operations Holdings, Inc. 02-40873 (CB)
Covanta Geothermal Operations, Inc. 02-40872 (CB)
Covanta Heber Field Energy, Inc. 02-40893 (CB)
Covanta Hennepin Energy Resource Co., L.P. 02-40906 (CB)
Covanta Hillsborough, Inc. 02-40932 (CB)
Covanta Honolulu Resource Recovery Venture 02-40905 (CB)
Covanta Huntington Limited Partnership 02-40916 (CB)
Covanta Huntington Resource Recovery One Corp. 02-40919 (CB)
Covanta Huntington Resource Recovery Seven Corp. 02-40920 (CB)
Covanta Huntsville, Inc. 02-40933 (CB)
Covanta Hydro Energy, Inc. 02-40894 (CB)
Covanta Hydro Operations West, Inc. 02-40875 (CB)
Covanta Hydro Operations, Inc. 02-40874 (CB)
Covanta Imperial Power Services, Inc. 02-40876 (CB)
Covanta Indianapolis, Inc. 02-40934 (CB)
Covanta Kent, Inc. 02-40935 (CB)
Covanta Lake, Inc. 02-40936 (CB)
Covanta Lancaster, Inc. 02-40937 (CB)
Covanta Lee, Inc. 02-40938 (CB)
Covanta Long Island, Inc. 02-40917 (CB)
Covanta Marion Land Corp. 02-40940 (CB)
Covanta Marion, Inc. 02-40939 (CB)
Covanta Mid-Conn, Inc. 02-40911 (CB)
Covanta Montgomery, Inc. 02-40941 (CB)
Covanta New Martinsville Hydro-Operations Corp. 02-40877 (CB)
Covanta Oahu Waste Energy Recovery, Inc. 02-40912 (CB)
Covanta Onondaga Five Corp. 02-40926 (CB)
Covanta Onondaga Four Corp. 02-40925 (CB)
Covanta Onondaga Limited Partnership 02-40921 (CB)
Covanta Onondaga Operations, Inc. 02-40927 (CB)
Covanta Onondaga Three Corp. 02-40924 (CB)
Covanta Onondaga Two Corp. 02-40923 (CB)
Covanta Onondaga, Inc. 02-40922 (CB)
Covanta Operations of Union, LLC 02-40909 (CB)
Covanta OPW Associates, Inc. 02-40908 (CB)
Covanta OPWH, Inc. 02-40907 (CB)
Covanta Pasco, Inc. 02-40943 (CB)
Covanta Power Equity Corp. 02-40895 (CB)
Covanta Projects of Hawaii, Inc. 02-40913 (CB)
Covanta Projects of Wallingford, L.P. 02-40903 (CB)
Covanta RRS Holdings, Inc. 02-40910 (CB)
Covanta Secure Services, Inc. 02-40901 (CB)
Covanta SIGC Geothermal Operations, Inc. 02-40883 (CB)
Covanta Stanislaus, Inc. 02-40944 (CB)
Covanta Systems, Inc. 02-40948 (CB)
Covanta Tampa Bay, Inc. 02-40865 (CB)
Covanta Tulsa, Inc. 02-40945 (CB)
Covanta Union, Inc. 02-40946 (CB)
Covanta Wallingford Associates, Inc. 02-40914 (CB)
Covanta Warren Energy Resource Co., L.P. 02-40904 (CB)
Covanta Waste to Energy of Italy, Inc. 02-40902 (CB)
Covanta Waste to Energy, Inc. 02-40949 (CB)
Covanta Water Holdings, Inc. 02-40866 (CB)
Covanta Water Systems, Inc. 02-40867 (CB)
Covanta Water Treatment Services, Inc. 02-40868 (CB)
DSS Environmental, Inc. 02-40869 (CB)
ERC Energy II, Inc. 02-40890 (CB)
ERC Energy, Inc. 02-40891 (CB)
Heber Field Energy II, Inc. 02-40892 (CB)
Heber Loan Partners 02-40889 (CB)
OPI Quezon, Inc. 02-40860 (CB)
Three Mountain Operations, Inc. 02-40879 (CB)
Three Mountain Power, LLC 02-40880 (CB)
SCHEDULE OF REORGANIZING DEBTORS FILING ON JUNE 6, 2003
(THE SUBSEQUENT PETITION DATE)
Reorganizing Debtor Case Number
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Covanta Energy International, Inc. 03-13706 (CB)
Covanta Power International Holdings, Inc. 03-13708 (CB)
Covanta Energy Group, Inc. 03-13707 (CB)
Covanta Projects, Inc. 03-13709 (CB)
EXHIBITS TO THE REORGANIZATION PLAN
EXHIBIT 4 TO REORGANIZATION PLAN
DESCRIPTION OF SETTLEMENT OF LOSS SHARING LITIGATION
LOSS SHARING SETTLEMENT TERM SHEET
Capitalized terms used herein without definition are used as defined in
the Intercreditor Agreement dated as of March 14, 2001, as amended (as so
amended, the "Intercreditor Agreement"), among Covanta Energy Corporation and
certain of its subsidiaries, the financial institutions party thereto as Opt-Out
Lenders, the financial institutions party thereto as Pooled Facility Lenders,
the Opt-Out Facility Agents, the Pooled Facility Agents, Deutsche Bank AG, New
York Branch, as Documentation Agent, and Bank of America, N.A., as Credit Agent
(collectively, Documentation Agent and Credit Agent are the "Agents").
1. Interim Reductions: Ernst & Young Corporate Finance LLC will calculate
the Realized Percentages immediately prior to (x) the effective date (the
"Plan Effective Date") of a plan of reorganization (the "Plan of
Reorganization") for Covanta and its debtor subsidiaries (collectively,
the "Debtors") in the jointly administered voluntary bankruptcy
proceedings under the Bankruptcy Code for such Debtors initially
commenced on April 1, 2002 (the "Chapter 11 Cases") and (y) giving effect
to the "pooling" transaction described in paragraph 3 below. On or about
the Plan Effective Date, the Pooled Facility Lenders and/or the Canadian
Loss Sharing Lenders will make loss sharing payments required under
Section 5.3 of the Intercreditor Agreement based on any adjustments to
the Realized Percentage that occur during the period from June 25, 2003
to the time of such calculation. For the avoidance of doubt, all
calculations contemplated herein of claim amounts and permanent
reductions thereto shall be determined based solely on the principal
amounts of such claims.
2. Exercise of Put/Realization on Collateral: On the Plan Effective Date
CIBC, as administrative agent for the holders of the Class B Palladium
Preferred Shares, will be deemed to exercise, and Company will be deemed
on such date to accept, the put to Company under the Class B Palladium
Put Agreement, as a result of which:
a. Company shall receive the 72 million of outstanding Class B Palladium
Preferred Shares and all rights related thereto;
b. The Canadian Loss Sharing Lenders shall have an allowed claim (the
"CLSL Claim") against Company for CDN $62,000,000 in respect of 62
million of the Class B Palladium Preferred Shares (i.e., the Class B
Canadian Facility); and
c. Separate and apart from its claim as one of the Canadian Loss Sharing
Lenders, CIBC shall reserve its rights against Company with respect
to the approximately CDN $10,000,000 of cash collateral held by CIBC
and with respect to the 10 million Class B Palladium Preferred Shares
that are not included in the Class B Canadian Facility.
On the Plan Effective Date, the Canadian Loss Sharing Lenders will apply
the amount of all payments received prior to the Plan Effective Date
pursuant to Section 5.3 of the Intercreditor Agreement (i.e., CDN
$16,465,133.83 in the aggregate plus any payment(s) made pursuant to
paragraph 1 above) to reduce on a dollar-for-dollar basis the principal
amount of the CLSL Claim.
3. Exit Facility Pooling: On the Plan Effective Date, after giving effect to
all adjustments to the Realized Percentages (and all resulting payments
under Section 5.3 of the Intercreditor Agreement) that are calculated as
described in paragraph 1 above and immediately prior to emergence of the
Debtors from the Chapter 11 Cases and distribution of any securities of
Debtors in the Plan of Reorganization to holders of Non-Priority
Prepetition Secured Claims (as defined below) (such securities being
"Plan Paper"), (i) each participant in the Tranche B Letters of Credit
and each Canadian Loss Sharing Lender (collectively, such participants
and Canadian Loss Sharing Lenders are referred to herein as a "Pool
Participant") at such time shall irrevocably purchase, from each Pool
Participant that is the issuer of a letter of credit (each such letter of
credit, a "Pooled Exit L/C") that replaces, renews or extends on the Plan
Effective Date a Tranche B Letter of Credit outstanding immediately prior
to the Plan Effective Date(1), a participation in such Pooled Exit L/C
(and any drawings honored thereunder, to the extent not yet reimbursed)
in an amount equal to such Pool Participant's Pro Rata Share thereof, and
(ii) each Pool Participant that is a participant in the Tranche B Letters
of Credit (without giving effect to the preceding clause (i)) at such
time shall irrevocably purchase in cash, in U.S. Dollars, from each Pool
Participant that is a Canadian Loss Sharing Lender, a portion of the
Pooled Funded Claim (as defined below) held by such Canadian Loss Sharing
Lender in an amount equal to such Pool Participant's Pro Rata Share
thereof. As used herein:
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(1) Each outstanding Tranche B Letter of Credit that has not been drawn and
reimbursed at the time this "pooling" transaction takes effect shall be
replaced, renewed or extended as a Pooled Exit L/C.
(1) the "Pro Rata Share" of a Pool Participant means the fraction,
expressed as a percentage, obtained by dividing (x) the aggregate Pooled
Funded Claim held by such Pool Participant plus the aggregate
participations held by such Pool Participant in the Tranche B Letters of
Credit replaced, renewed or extended by the Pooled Exit L/Cs, in each
case determined immediately prior to giving effect to the purchases
described in the first sentence of this paragraph 3, by (y) the aggregate
Pooled Funded Claim held by all Pool Participants plus the aggregate
participations held by all Pool Participants in the Tranche B Letters of
Credit replaced, renewed or extended by the Pooled Exit L/Cs;
(2) the "Pooled Funded Claim" means the amount of the portion of the
outstanding principal amount of the CLSL Claim as of the Plan Effective
Date equal to the amount which would be required to be paid to the
Canadian Loss Sharing Lenders pursuant to the terms of Section 5.3 of the
Intercreditor Agreement (in addition to amounts already paid pursuant to
such Section or payable to Canadian Loss Sharing Lenders pursuant to
paragraph 1 above) if the unfunded exposure of Pooled Facility Lenders
were deemed permanently reduced on the Plan Effective Date by an amount
equal to the amount of all Pooled Exit L/Cs, provided [that the foregoing
calculations of permanent reductions and Realized Percentages shall be
adjusted to reflect the fact that the Pooled Facility Lenders shall
receive Plan Paper on account of the Loss Sharing Indemnity, and provided
further,] that for purposes of the "pooling" transaction and calculating
the "Pro Rata Share" of each Pool Participant as described above, the
Pooled Funded Claim shall be converted to and measured in U.S. Dollars as
of the Effective Date at the "spot" rate, and the CLSL Claim shall be
reduced on a dollar-for-dollar basis by the Canadian dollar portion of
the CLSL Claims represented by such converted Pooled Funded Claim; and
(3) "Non-Priority Prepetition Secured Claims" means secured claims of the
Pooled Facility Lenders in existence prior to the date of filing of the
Chapter 11 Cases that are not given priority or priority claim status in
the Chapter 11 Cases or pursuant to the Intercreditor Agreement.
The effect of the foregoing "pooling" arrangement would be that the
Pooled Facility Lenders would purchase in cash from the Canadian Loss
Sharing Lenders their respective Pro Rata Shares of the Pooled Funded
Claim (and the Pooled Funded Claim would thereafter be denominated in
U.S. Dollars), and the Canadian Loss Sharing Lenders and Pooled Facility
Lenders would all become lenders and participants with respect to the
Pooled Exit L/Cs (with the Canadian Loss Sharing Lenders purchasing in
cash from the Pooled Facility Lenders their respective Pro Rata Shares of
any funded amounts under Pooled Exit L/Cs that had not been reimbursed),
would be entitled to vote as lenders with respect to the credit facility
for the Pooled Exit L/Cs, would be obligated to fund their ratable shares
of any honored drawings under the Pooled Exit L/Cs, and would receive
their ratable shares of any fees with respect to the Pooled Exit L/Cs and
any interest on any drawn amounts, all in U.S. Dollars. Company will be
required to "gross up" the Canadian Loss Sharing Lenders for any
applicable withholding tax on payments made to them following this
"pooling". The aforementioned purchase of the relevant portion of the
Pooled Funded Claim by the Pooled Facility Lenders would be funded with
the proceeds of "Tranche C Loans" under the DIP Credit Agreement, and
upon such funding all claims of the Canadian Loss Sharing Lenders to the
portion of the Pooled Funded Claim purchased with such Tranche C Loans
would thereupon be released and waived, with such Tranche C Loans being
substituted therefor.
An example of the effect of the foregoing "pooling" arrangement is set
forth on Schedule I annexed hereto, assuming the facts set forth in such
Schedule.
4. Treatment of Pooled Funded Claim: On the Plan Effective Date, following
the purchase of the participations described above, Pool Participants
will be entitled to have those Tranche C Loans made as described in
paragraph 3 above and any portion of the Pooled Funded Claim not
purchased with the proceeds of Tranche C Loans treated in the Plan of
Reorganization on the same status as Non-Priority Prepetition Secured
Claims and to receive, in consideration of such Tranche C Loans and such
portion of the Pooled Funded Claim, a ratable portion of any Plan Paper.
5. Treatment of Remaining CLSL Claim: On the Plan Effective Date, Canadian
Loss Sharing Lenders will be entitled to have the portion of the
principal amount of their CLSL Claim not constituting the Pooled Funded
Claim treated in the Plan of Reorganization on the same status as
Non-Priority Prepetition Secured Claims and to receive, in consideration
of such portion of their CLSL Claim, a ratable portion of any Plan Paper.
6. Termination of Loss Sharing: On the Plan Effective Date, after giving
effect to consummation of the transactions described above, (i) Section
5.3 of the Intercreditor Agreement and all other provisions of the
Intercreditor Agreement relating to the "loss sharing" obligations of the
Pooled Facility Lenders and the Canadian Loss Sharing Lenders will
terminate, (ii) each of the Pooled Facility Lenders, on the one hand, and
the Canadian Loss Sharing Lenders, on the other hand, will release any
further existing or future claims against the other Group or against the
Agents arising under or with respect to such provisions, (iii) the motion
made in the Chapter 11 Cases by CIBC relating to the claims of the
Canadian Loss Sharing Lenders shall be deemed dismissed with prejudice,
and (iv) any "Tranche C Commitments" as defined in the DIP Credit
Agreement shall be terminated.
EXHIBITS TO THE REORGANIZATION PLAN
EXHIBIT 9.1A TO REORGANIZATION PLAN
LIST OF REJECTING DEBTORS
TO COME
EXHIBITS TO THE REORGANIZATION PLAN
EXHIBIT 9.1B TO REORGANIZATION PLAN
LIST OF ASSUMING DEBTORS
TO COME