Exhibit 2.2
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
Case Nos. 02-40826 (CB) et al.
OGDEN NEW YORK SERVICES, INC., et al., :
-- --
(Jointly Administered)
Debtors and Debtors in Possession :
- ------------------------------------------------x
DEBTORS' JOINT PLAN OF LIQUIDATION
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.
Ogden New York Services, Inc. and certain affiliates listed on Exhibit
1 attached hereto 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, (each a "Liquidating Debtor" and
collectively, the "Liquidating Debtors"), hereby propose and file this following
Joint Plan of Liquidation (the "Liquidation Plan"):
ARTICLE I DEFINITIONS AND INTERPRETATION...............................1
1.1 Definitions.......................................................1
ARTICLE II TREATMENT OF ADMINISTRATIVE.................................14
2.1 Non-Classification...............................................14
2.2 Administrative Expense Claims....................................14
2.3 Compensation and Reimbursement Claims............................15
2.4 Priority Tax Claims..............................................15
2.5 DIP Financing Facility Claims....................................16
ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS......................16
3.1 General Rules of Classification..................................16
ARTICLE IV TREATMENT OF CLAIMS AND EQUITY INTERESTS....................17
4.1 Class 1-- Allowed Priority Non-Tax Claims........................17
4.2 Class 2-- Intentionally Omitted..................................17
4.3 Subclass 3A-- Allowed Liquidation Secured Claims.................17
4.4 Subclass 3B-- Allowed Secured CSFB Claim.........................18
4.5 Class 4-- Intentionally Omitted..................................18
4.6 Class 5-- Intentionally Omitted..................................18
4.7 Class 6-- Intentionally Omitted..................................18
4.8 Class 7-- Unsecured Liquidation Claims...........................18
4.9 Class 8-- Intentionally Omitted..................................18
4.10 Class 9-- Intercompany Claims....................................19
4.11 Class 10-- Intentionally omitted.................................19
4.12 Class 11-- Equity Interests in the Liquidating Debtors...........19
4.13 Class 12-- Intentionally Omitted.................................19
4.14 Class 13-- Intentionally Omitted.................................19
ARTICLE V ACCEPTANCE OR REJECTION OF THE LIQUIDATION PLAN.............19
5.1 Voting of Claims.................................................19
5.2 Acceptance by a Class............................................19
5.3 Presumed Acceptance of Plan......................................20
5.4 Presumed Rejection of Plan.......................................20
5.5 Cramdown.........................................................20
ARTICLE VI MEANS FOR IMPLEMENTATION....................................20
6.1 Actions Occurring On the Effective Date..........................20
6.2 Fractional Interests.............................................21
6.3 Date of Distributions............................................21
6.4 Settlements......................................................22
6.5 No Interim Cash Payments of $100 or Less on Account of Allowed
Claims Prior to Final Liquidation Distribution Date..............22
6.6 Unclaimed Property...............................................22
6.7 Withholding Taxes................................................22
6.8 Reservation of Rights of the Estate..............................22
ARTICLE VII PROCEDURES FOR RESOLVING AND TREATING DISPUTED CLAIMS.......22
7.1 No Distribution Pending Allowance................................22
7.2 Resolution of Disputed Claims and Equity Interests...............23
7.3 Estimation of Claims and Equity Interests........................23
7.4 Reserve Account for Disputed Claims..............................23
7.5 Allowance of Disputed Claims.....................................24
ARTICLE VIII TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.......24
8.1 General Treatment................................................24
8.2 Cure of Defaults.................................................25
8.3 Approval of Assumption and Assignment of Executory Contracts
on the Schedule of Assumed Contracts and Leases..................25
8.4 Approval of Rejection of Executory Contracts and Unexpired
Leases...........................................................25
8.5 Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to the
Liquidation Plan.................................................25
8.6 Reservation of Rights Under Insurance Policies and Bonds.........26
ARTICLE IX THE LIQUIDATING TRUSTEE.....................................26
9.1 Appointment......................................................26
9.2 Compensation of the Liquidating Trustee for Dissolution
Expenses.........................................................26
9.3 Recovery or Realization of Liquidation Proceeds..................27
9.4 Distributions....................................................27
9.5 Engagement of Professionals......................................27
9.6 Status of the Liquidating Trustee................................27
9.7 Authority........................................................28
9.8 Objectives.......................................................29
9.9 Distributions....................................................29
9.10 Abandonment......................................................29
9.11 No Recourse......................................................29
9.12 Limited Liability................................................29
9.13 Resignation......................................................29
9.14 Reserves.........................................................30
9.15 Statements.......................................................30
9.16 Further Authorization............................................30
ARTICLE X APPOINTMENT OF THE OVERSIGHT NOMINEE........................30
10.1 Appointment of the Oversight Nominee.............................30
10.2 Authority and Responsibility of the Oversight Nominee............31
10.3 Limited Liability................................................31
10.4 The Oversight Nominee Expenses...................................31
ARTICLE XI CONDITIONS PRECEDENT TO THE CONFIRMATION AND THE
EFFECTIVE DATE..............................................31
11.1 Conditions to Confirmation.......................................31
11.2 Conditions Precedent to the Effective Date.......................32
11.3 Waiver of Conditions.............................................32
11.4 Failure to Satisfy or Waiver of Conditions Precedent.............32
ARTICLE XII EFFECTS OF CONFIRMATION
12.1 Discharge........................................................33
12.2 Binding Effect...................................................33
12.3 Term of Injunctions or Stays.....................................33
12.4 Injunction Against Interference with Liquidation Plan............33
12.5 Exculpation......................................................33
12.6 Injunction.......................................................34
12.7 Release Granted by the Liquidating Debtors.......................34
ARTICLE XIII MISCELLANEOUS PROVISIONS....................................35
13.1 Retention of Jurisdiction........................................35
13.2 Deletion of Classes and Subclasses...............................37
13.3 Courts of Competent Jurisdiction.................................37
13.4 Payment of Statutory Fees........................................37
13.5 Dissolution of the Committee.....................................37
13.6 Effectuating Documents and Further Transactions..................37
13.7 Successors and Assigns...........................................37
13.8 Governing Law....................................................37
13.9 Modification of Plan.............................................37
13.10 Rules of Construction............................................38
13.11 Computation of Time..............................................38
13.12 Notices..........................................................38
13.13 Exhibits.........................................................39
13.14 Counterparts.....................................................39
13.15 Severability.....................................................39
EXHIBITS TO THE LIQUIDATION PLAN
Exhibit Number Exhibit
-------------- -------
1 List of Liquidating Debtors
2 List of Reorganizing Debtors
3 List of Liquidating Debtors that Filed on the Initial
Petition Date and the Subsequent Petition Date
4 List of Heber Debtors
INTRODUCTION
This Liquidation Plan contemplates a separate liquidation of
each Liquidating Debtor administered by the Liquidating Trustee pursuant to
which certain existing creditors of the Liquidating Debtors will receive, except
as otherwise provided herein, the Cash proceeds of liquidation as their
respective assets are liquidated and Claims against their respective assets are
resolved to be distributed by the Liquidating Trustee. Although presented as a
joint plan, this Liquidation Plan provides for separate treatment of each
Liquidating Debtor, such that each Liquidating Debtor's estate will be
liquidated and distributions made to holders of Allowed Claims against that
Liquidating Debtor. This Liquidation Plan does NOT provide for substantive
consolidation of the Liquidating Debtors. Capitalized terms used herein shall
have the meanings ascribed to such terms in Article I of this Liquidation Plan.
Reference is made to the Disclosure Statement accompanying
this Liquidation Plan, including the Exhibits thereto, for a discussion of the
Liquidating Debtors' history, business, results of operations and properties,
and for a summary and analysis of the Liquidation Plan. All creditors are
encouraged to consult the Disclosure Statement and read this Liquidation Plan
carefully before voting to accept or reject this Liquidation 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
LIQUIDATION PLAN.
The Liquidating Debtors reserve the right to proceed with
confirmation of this Liquidation Plan as to some but not all of the Liquidating
Debtors at the same time.
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In addition to such other terms as are defined in
other Sections of this Liquidation 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 Liquidation Plan and not defined herein or
elsewhere in this Liquidation 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
applicable Petition Date for preserving the assets of the Liquidating Debtors,
any actual and necessary costs and expenses of operating the businesses of the
Liquidating Debtors incurred after the applicable Petition Date, all
compensation and reimbursement of expenses allowed by the Court under sections
330, 331 or 503 of the Bankruptcy Code and 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 Liquidating Debtor; or (c) fees and expenses incurred by (i)
Retained Professionals, (ii) Persons employed by the Liquidating Debtors or
serving as independent contractors to the Liquidating Debtors in connection with
their liquidation efforts, including, without limitation, the Liquidating
Trustee, any Retained Liquidation Professional and the Balloting Agent.
"Agent Banks" means Bank of America, N.A., as Administrative
Agent and Deutsche Bank, AG, New York Branch, as Documentation Agent, under the
Prepetition Agreement.
"Allowed" means, with reference to the portion of any Claim
(other than Administrative Expense Claims) or Equity Interest and with respect
to each Liquidating Debtor, (a) any such Claim against or Equity Interest in
such Liquidating Debtor which has been listed by a Liquidating Debtor in its
Schedules, as such Schedules have been or may be amended or supplemented by a
Liquidating 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 this Liquidation Plan or under any settlement agreement
incorporated or otherwise implemented by this Liquidation Plan, (ii) by Final
Order, or (iii) as to which the liability of each Liquidating 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 Liquidating Debtors, the Liquidating Trustee,
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 this Liquidation 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 Liquidation 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
Liquidation 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 applicable Petition
Date or any fees (including attorneys' fees), costs or charges (including late
payment charges) related to any Claim accruing from or after the applicable
Petition Date.
"Allowed Administrative Expense Claim" means the portion of
any Administrative Expense Claim (including any interest for which the
Liquidating Debtors are legally obligated) that is (i) incurred or arising after
the applicable 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 or other dispute has been raised by the Liquidating
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 related to the DIP Financing Facility are deemed Allowed
Administrative Expense Claims.
"Allowed Class o Claims" means an Allowed Claim in the
specified Class.
"Allowed Priority Tax Claim" means any Claim that is Allowed
pursuant to Section 2.4 of this Liquidation Plan.
"Allowed Subclass 3A Liquidation Secured Claim Amount" means
(i) 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 and
(ii) the allowed amount of the Secured 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.
"Ballot" means the ballot that accompanies the Disclosure
Statement upon which holders of Impaired Claims entitled to vote on the
Liquidation Plan shall indicate their acceptance or rejection of the Liquidation
Plan.
"Balloting Agent" means Bankruptcy Services LLC ("BSI") or
such other entity authorized by the Court to distribute, collect and tally
Ballots.
"Bank Agreement Ogden FMCA Collateral" means the assets of
Ogden FMCA subject to a lien of CSFB, in its capacity as holder of the Secured
CSFB Claim, pursuant to the Prepetition CSFB Agreement.
"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 Liquidation 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 due 2022 issued by Ogden Corporation, now known as Covanta
Energy Corporation.
"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.
"Causes of Action" means as to each Liquidating Debtor all
claims and causes of action now owned or hereafter acquired by such Liquidating
Debtor, whether arising under any section under the Bankruptcy Code or other
federal or state law, including, without limitation, causes of action for
preferences, fraudulent conveyances, and other avoidance power claims arising
under sections 544, 545, 547, 548, 549, 550, 551, 553(b) or other sections of
the Bankruptcy Code.
"Chapter 11 Cases" means the voluntary cases under Chapter 11
of the Bankruptcy Code commenced by each Liquidating 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 Liquidation Plan in accordance with section
1123(a)(1) of the Bankruptcy Code.
"Collateral" means as to each Liquidating Debtor any property
or interest in property of the estate of the Liquidating Debtor subject to a
Lien to secure the payment or performance of an Allowed Claim, which Lien is not
subject to avoidance under the Bankruptcy Code or otherwise invalid under the
Bankruptcy Code or applicable state law.
"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 Liquidation 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 Liquidation 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 Liquidation Plan, which in each
case shall be in form and substance satisfactory to the Liquidating Debtors.
"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 the Reorganizing
Debtors' and Heber Debtors' Chapter 11 Cases.
"CSFB" means Credit Suisse First Boston, or its predecessor
entity, Credit Suisse, including the Persons participating in CSFB's interest
under the Prepetition CSFB Agreement.
"Designated DIP Collateral" means (i) any Cash held by the
Liquidating Non-Pledgor Debtors (including the Liquidation Proceeds resulting
from the sale of certain assets of Ogden Transition Corp.) or any entitlement or
Claim of a Liquidating Non-Pledgor Debtor to any Cash, and (ii) any Causes of
Action of the Liquidating Debtors.
"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 Lender Direction" means the direction of the DIP Lenders,
instructing the Liquidating Debtors to transfer any Designated DIP Collateral to
Reorganized Covanta.
"DIP Lenders" means those Persons from time to time party to
the DIP Financing Facility as lenders.
"Disclosure Statement" means the written disclosure statement
that relates to this Liquidation Plan and is approved by the Court pursuant to
section 1125 of the Bankruptcy Code, as such disclosure statement has been or
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 or is subject to
an Estimation Request, or as to which an objection has been filed. For the
purposes of the Liquidation 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 the relevant Liquidating Debtor in its Schedules; (b) any corresponding Claim
scheduled by a Liquidating Debtor has been scheduled as disputed, contingent or
unliquidated in its Schedules or (c) no corresponding Claim has been scheduled
by a Liquidating Debtor in its Schedules.
"Disputed Claims Reserve " means the reserve established by
the Liquidating Trustee pursuant to Section 9.14(a) of the Liquidation Plan,
with respect to each Class of Claims entitled to Distributions under the
Liquidation Plan, in which (i) the Liquidating Trustee determines that there
exist any Disputed Claims in such Class and (ii) the Liquidating Trustee
identifies Liquidation Proceeds that are not Collateral, in order to make
Distributions in an amount such that, if such Disputed Claims were to become
Allowed Claims, there will be sufficient Cash to pay all of such Disputed Claims
with respect each such Class of Claims in accordance with the provisions of this
Liquidation Plan. The Disputed Claims Reserve is to be maintained under this
Liquidation Plan, as set forth more fully in Article VII of this Liquidation
Plan.
"Dissolution Expenses" means all reasonable and necessary
costs of the Liquidating Trustee (including any Retained Liquidating
Professional retained by the Liquidating Trustee, pursuant to Section 9.5 of the
Liquidation Plan) associated with (i) winding up and dissolving the Liquidating
Debtors in accordance with applicable state law, (ii) the abandonment of any
Liquidation Assets in accordance with Section 9.10 of the Liquidation Plan,
(iii) commencing a proceeding in the Court to determine the reasonableness,
accuracy or proper scope of any Dissolution Expenses disputed by the Oversight
Nominee, (iv) the administration of the Liquidation Trust (including the payment
of any United States Trustee Fees), (v) obtaining a Final Order from the Court
closing the Chapter 11 Case of each Liquidating Debtor, (vi) the filing of any
necessary tax returns and other filings with governmental authorities on behalf
of the Liquidation Trust and the Residual Liquidation Assets it holds and (vii)
making any Distributions under this Liquidation Plan; provided, however, that
Dissolution Expenses shall not include any Liquidation Expenses.
"Distribution" means any distribution by the Liquidating
Trustee of Net Liquidation Proceeds of other Liquidation Assets to the holders
of Allowed Claims.
"Effective Date" means the date upon which the Reorganization
Plan Effective Date occurs.
"Equity Interest" means as to each Liquidating Debtor, any
equity security, partnership interest or share of common stock or other
instrument evidencing an ownership interest in such Liquidating 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 Liquidating Debtor and shall include any redemption,
conversion, exchange, voting participation, dividend rights and liquidation
preferences relating thereto.
"Estate" means as to each Liquidating Debtor, the estate which
was created by the commencement of such Liquidating 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 Liquidating Debtor and all
interests in property, whether real, personal or mixed, rights, causes of
action, avoidance powers or extensions of time that such Liquidating Debtor or
such estate shall have had effective as of the commencement of the Chapter 11
Cases, or which such estate acquired after the commencement of the Chapter 11
Case, whether by virtue of sections 544, 545, 546, 547, 548, 549 or 550 of the
Bankruptcy Code or otherwise.
"Estimation Request" means a request for estimation of a Claim
in accordance with the Bankruptcy Code and the Bankruptcy Rules.
"Fee Dispute Notice" means the notice sent by the Oversight
Nominee to the Liquidating Trustee or any Retained Professional, within fifteen
(15) days receipt of the Liquidation Trustee Fee Notice and Retained
Professional Fee Notices, disputing the (i) reasonableness, (ii) accuracy or
(iii) scope of any portion of the Dissolution Expenses claimed by the
Liquidating Trustee or any Retained Professional.
"Final Distribution" means with respect to each Liquidating
Debtor, the distribution by the Liquidating Trustee that exhausts any Residual
Liquidation Assets attributable to such Liquidating Debtor.
"Final Liquidation Determination Date" means the date, as to
each of the Liquidating Debtors, upon which either (i) the Final Liquidation
Distribution Date occurs; or (ii) the Liquidating Trustee determines that there
exist no Residual Liquidation Assets which could generate Liquidation Proceeds.
"Final Liquidation Distribution Date" means with respect to
each Liquidating Debtor, the Liquidation Distribution Date on which the Final
Distribution is made.
"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.
"Heber Debtors" means, collectively, those debtors identified
on Exhibit 4 attached to this Liquidation Plan that are being reorganized
pursuant to the Reorganization Plan
"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.
"Initial Liquidation Distribution Date" means the date that is
the later of (i) the Effective Date (or soon thereafter as reasonably
practicable, but in no event later than thirty (30) calendar days after the
Effective Date) and (ii) the first Business Day after the date that is thirty
(30) calendar days after the date any Claims become Allowed Claims or otherwise
become payable under the Liquidation Plan.
"Initial Petition Date" means April 1, 2002, the date upon
which the Liquidating Debtors identified on Exhibit 3 as those that filed on the
Initial Petition Date filed their respective orders for relief under Chapter 11
of the Bankruptcy Code.
"Intercompany Claims" means all Claims against a Liquidating
Debtor asserted by any other Liquidating Debtor, 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 Liquidating 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 Liquidating
Debtors, fraud, (f) claims or causes of action arising out of any contracts or
other agreements between or among any of the Liquidating Debtors and any other
Liquidating Debtor or any other Reorganizing Debtor or Heber Debtor 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 Reorganization Plan or this Liquidation
Plan that are based on an injury that affects or affected the shareholders or
creditors of any of the Liquidating Debtors, Reorganizing Debtors or Heber
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 Petition Date" means December 16, 2002, the date
upon which Covanta Concert Holdings, Inc. filed its order for relief under
Chapter 11 of the Bankruptcy Code.
"Lien" has the meaning set forth in section 101(37) of the
Bankruptcy Code.
"Liquidating Debtors" has the meaning ascribed to such term on
the first page of this Liquidation Plan (each of the Liquidating Debtors is
individually referred to herein as a Liquidating Debtor). A list of the
Liquidating Debtors is attached hereto as Exhibit 1.
"Liquidating Non-Pledgor Debtors" means the Liquidating
Debtors that are not Liquidating Pledgor Debtors.
"Liquidating Pledgor Debtor Assets" means any the following
Claims and Liquidation Assets of the Liquidating Pledgor Debtors: (i) the claim
to any tax refunds due to Ogden Allied Maintenance Corporation resulting from
the sale of certain non-port aviation Liquidation Assets; (ii) the claim to any
proceeds resulting from the dispute between Covanta Concert Holdings, Inc. and
the purchaser of certain of its Liquidation Assets over certain rental payments;
(iii) the claim to the proceeds of any settlement reached by Ogden New York
Services, Inc. and the purchaser of substantially all of its Liquidation Assets;
(iv) the claim to the Liquidation Proceeds or, if sold prior to the Effective
Date, then the proceeds, relating to the sale of any Liquidation Assets of Ogden
Firehole Entertainment Corp.; (v) any Liquidation Assets of Ogden FMCA, not
otherwise surrendered to CSFB pursuant to Section 4.4 of this Liquidation Plan;
(vi) any Cash held by a Liquidating Pledgor Debtor or any entitlement or Claim
of a Liquidating Pledgor Debtor to any Cash, which arose prior to the Petition
Date (including any accounts receivable); and (vii) any Causes of Action of the
Liquidating Pledgor Debtors, not otherwise transferred to Reorganized Covanta
pursuant to the DIP Lender Direction.
"Liquidating Pledgor Debtors" means the Liquidating Debtors
whose Liquidation Assets are Collateral of (i) the banks under the Prepetition
Credit Agreement and (ii) the holders of the 9.25% Debentures.
"Liquidating Trust" means a grantor trust established pursuant
to a Liquidating Trust Agreement.
"Liquidating Trust Agreement" means as to the Liquidating
Debtors, the agreement, which creates the Liquidating Trust, to be entered into
by the Liquidating Debtors and the Liquidating Trustee and which shall be
included in the Liquidation Plan Supplement.
"Liquidating Trustee" means as to the Liquidating Debtors, the
individual identified in the Notice of Designation and any replacement thereof
duly appointed by the Oversight Nominee.
"Liquidating Trustee Billing Date" means the date that is the
twenty-fifth (25th) day of each month following the first full month after the
Effective Date.
"Liquidating Trustee Fee Notice" means the reasonably detailed
statement sent by the Liquidating Trustee to the Oversight Nominee on any
Liquidation Trustee Billing Date detailing: (i) any Dissolution Expenses
incurred by the Liquidating Trustee in the prior month; (ii) Distributions, if
any, made in the previous month; and (iii) planned Distributions, if any, for
the next Liquidation Distribution Date.
"Liquidation Assets" means as to each Liquidating Debtor all
of the assets, property, interests (including the equity interests of each and
every Liquidating Debtor) and effects, real and personal, tangible and
intangible, wherever located, of such Liquidating Debtor, provided, however,
that the Liquidation Assets shall not include the Bank Agreement Ogden FMCA
Collateral.
"Liquidation Distribution Date" means any of the following
dates if there are any Net Liquidation Proceeds in the Liquidating Trust
attributable to any Liquidating Debtor on such date: (a) the Initial Liquidation
Distribution Date, (b) from the Initial Liquidation Distribution Date until the
Final Liquidation Distribution Date, the last Business Day of any calendar
quarter, and (c) the Final Liquidation Distribution Date.
"Liquidation Expenses" means the costs incurred by the
Liquidating Trustee in its efforts to sell, transfer, collect or otherwise
monetize any of the Residual Liquidation Assets.
"Liquidation Plan" means this Joint Plan of Liquidation under
Chapter 11 of the Bankruptcy Code, including, without limitation, all documents
referenced herein and all exhibits, supplements, appendices and schedules
hereto, either in its present form or as the same has been or may be altered,
amended, modified or supplemented from time to time.
"Liquidation Plan Supplement" means a supplemental appendix to
this Liquidation Plan that will contain certain documents relating to this
Liquidation Plan in substantially completed form, including the Liquidating
Trust Agreement to be filed no later than five (5) days prior to the last date
by which votes to accept or reject this Liquidation Plan must be submitted.
Documents to be included in the Liquidation Plan Supplement will be posted at
www.covantaenergy.com as they become available, but no later than five (5) days
prior to the last date by which votes to accept this Liquidation Plan must be
submitted.
"Liquidation Proceeds" means the Cash consideration received
from the sale, transfer or collection of any Liquidation Assets or the
monetization of such Liquidation Assets to Cash in some other manner as
contemplated in this Liquidation Plan, occurring after the applicable Petition
Date, less the reasonable, necessary and customary expenses attributable to such
sale, transfer, collection or monetization, including costs of curing defaults
under executory contracts that are assigned, paying personal property or other
taxes accruing in connection with such sale, transfer, collection or
monetization of such Liquidation Assets, brokerage fees and commissions,
collection costs, reasonable attorneys' fees and expenses and any applicable
taxes or other claims of any Governmental Unit in connection with such
Liquidation Assets and any escrows or accounts established to hold funds for
purchase price adjustments, indemnification claims, or other purposes in
connection with such sale, transfer, collection or monetization; provided,
however, that upon the release to the Liquidating Debtors of funds from such
escrows or accounts, such funds shall become Liquidation Proceeds of the
relevant sale, transfer, collection or monetization.
"Liquidation Secured Claims" means the Secured Bank Claims and
the 9.25% Debenture Claims, provided, however, that such Claims shall not
include the Secured CSFB Claim.
"Net Liquidation Proceeds" shall consist of the Liquidation
Proceeds, interest, dividends, and other investment (or other cash equivalent)
income produced by the Liquidation Assets.
"Notice of Designation" means the notice filed with the Court
on or before thirty (30) days prior to the Confirmation Hearing, designating the
Liquidating Trustee and the Oversight Nominee.
"9.25% Debenture Claim" means any Claim that arises out of, or
is attributable to, ownership of the 9.25% Debentures.
"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.
"Ogden FMCA" means Ogden Facility Management Corporation of
Anaheim, a Liquidating Debtor.
"Operating Reserve" means the reserve established by the
Liquidating Trustee on the Effective Date to pay (x) the Administrative Expense
Claims, Priority Tax Claims and Priority Non-Tax Claims of the Liquidating
Debtors, (y) the Oversight Nominee Expenses and (z) the Dissolution Expenses,
which reserve shall be funded in an amount not to exceed $500,000.00.
"Oversight Nominee" means the Person identified in the Notice
of Designation and appointed pursuant to Article X of this Liquidation Plan.
"Oversight Nominee Expenses" means the reasonable fees and
expenses of the Oversight Nominee in the discharge and performance of its duties
specified in this Liquidation Plan.
"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 Liquidating Debtor, or any other
entity.
"Petition Date" means, collectively, the Initial Petition
Date, the Intermediate Petition Date and the Subsequent Petition Date.
"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, Liquidating Debtors and Heber 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 CSFB Agreement" means the Bank Agreement dated as
of December 1, 1993, among the City of Anaheim, Ogden FMCA and CSFB.
"Prepetition Lenders" means the Persons identified as lenders
under the Prepetition Credit Agreement, together with their successors and
permitted assigns.
"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 Governmental 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 or
Liquidation Assets (including Disputed Claims).
"Reorganization Plan" means the Joint Plan of Reorganization
of Ogden New York Services, Inc. et al. Under Chapter 11 Of The Bankruptcy Code
(including all exhibits and schedules annexed thereto), as the same has been or
may be amended, modified or supplemented from time to time.
"Reorganization Plan Effective Date" means a date, which is a
Business Day selected by the Reorganizing Debtors that is no more than ten (10)
Business Days following the date on which all conditions set forth in Section
10.2 of the Reorganization Plan have been satisfied or expressly waived pursuant
to Section 10.3 of the Reorganization Plan.
"Reorganized Covanta" means Covanta on and after the Effective
Date.
"Reorganized Debtor" means each Reorganizing Debtor, on or
after the Effective Date.
"Reorganizing Debtors" means, collectively, those debtors
identified on Exhibit 2 attached hereto that are being reorganized pursuant to
the Reorganization Plan.
"Residual Liquidation Assets" means any Liquidation Assets
that are not Designated DIP Collateral or Liquidating Pledgor Debtor Assets.
"Retained Liquidation Professional" means any attorney,
accountant or other professional retained by the Liquidating Trustee with the
prior approval of the Oversight Nominee, which professional is reasonably
required by the Liquidating Trustee to perform its duties described in this
Liquidation Plan.
"Retained Liquidation Professional Fee Notice" means the
reasonably detailed statement sent by any Retained Liquidation Professional to
the Liquidating Trustee five (5) days prior to the Liquidating Trustee Billing
Date detailing such Retained Liquidation Professional's fees and expenses
arising under this Liquidation Plan.
"Retained Professionals" means the professionals retained in
these jointly administered Chapter 11 Cases by the Liquidating Debtors or the
Committee pursuant to sections 327, 328 or 1103 of the Bankruptcy Code pursuant
to Final Orders of the Court (other than Retained Liquidation Professionals).
"Schedule of Assumed Contracts and Leases" means a schedule of
the executory contracts and unexpired leases to which each of the Liquidating
Debtors is a party that will be assumed under Article VIII of the Liquidation
Plan, which schedule will be filed and served on the relevant parties no less
than twenty-three (23) days prior to the Confirmation Hearing.
"Schedules" means the schedules of assets and liabilities and
the statement of financial affairs filed by the Liquidating 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 amended or supplemented from time to time.
"Secured Bank Claims" means the Secured Claims of the
Prepetition Lenders arising under the Prepetition Credit Agreement and related
collateral documents.
"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 Liquidating 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 Liquidating 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.
"Secured Creditor Direction" means (a) the direction of the
holders of Allowed Class 3A Claims instructing the Liquidating Pledgor Debtors
to (i) transfer any Distributions in excess of $500,000 that such holders of
Class 3A Claims would otherwise be entitled to under this Liquidation Plan to
Reorganized Covanta, (ii) transfer up to $500,000 of such Distributions to the
Operating Reserve and (iii) transfer any Liquidating Pledgor Debtor Assets to
Reorganized Covanta; (b) the release by the holders of Allowed Class 3A Claims
of any Liens on any Net Liquidation Proceeds and Liquidating Pledgor Debtor
Assets resulting from the post-petition sale of any of the Liquidation Assets of
the Liquidating Pledgor Debtors and all Liquidating Pledgor Debtor Assets
transferred to Reorganized Covanta and (c) upon the occurrence of (I) the orders
closing each of the Chapter 11 Cases becoming Final Orders, (II) the Final
Liquidation Determination Date as to all of the Liquidating Debtors and (III)
the final payment of any remaining Dissolution Expenses and Oversight Nominee
Expenses, to the extent that there is any Cash in the Operating Reserve, such
Cash shall be contributed to Reorganized Covanta.
"Secured CSFB Claim" means the Secured Claim against Ogden
FMCA of CSFB arising under the Prepetition CSFB Agreement.
"Specified Personnel" means any individual serving as a
present or former officer, director or employee of the Liquidating Debtors who,
prior to the Confirmation Date, was entitled to indemnification from one of the
Liquidating Debtors or for whom such indemnification was permitted under
applicable law.
"Subsequent Petition Date" means June 6, 2003, the date upon
which the Liquidating Debtors identified on Exhibit 3 as those that filed on the
Subsequent Petition Date filed their respective petitions for relief under
Chapter 11 of the Bankruptcy Code.
"Substantial Contribution Claims" means the claim by any
creditor or party in interest for reasonable compensation for services rendered
in the Chapter 11 Cases pursuant to section 503(b)(3), (4) or (5) of the
Bankruptcy Code.
"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 Liquidating Debtors to the United States Trustee pursuant to section
1930 of Title 28 of the United States Code.
"Unsecured Liquidation Claim" means any Claim (including
without limitation, Claims arising from the rejection of executory contracts and
unexpired leases) that is not a Secured Claim, Administrative Expense Claim,
Priority Tax Claim, Priority Non-Tax Claim or Intercompany Claim against the
Liquidating Debtors.
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 Liquidating Debtors are not classified for the purposes of voting on or
receiving Distributions under this Liquidation 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 Liquidating Debtor and a holder of an Allowed Administrative Expense
Claim agree to less favorable treatment and except as set forth in Section 2.3
and 2.5 of this Liquidation Plan, each Liquidating Debtor shall pay to each
holder of an Allowed Administrative Expense Claim against such Liquidating
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 Initial Liquidation
Distribution Date from the Operating Reserve 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 Liquidating Debtor, as a debtor in possession, shall be paid by
the Liquidating Trustee from the Operating Reserve 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) of this
Liquidation Plan, all (i) Retained Professionals and (ii) Persons employed by
the Liquidating Debtors or serving as independent contractors to the Liquidating
Debtors in connection with their liquidating efforts that are seeking an award
by the Court of compensation for services rendered or reimbursement of expenses
incurred through and including the Confirmation Date under subsections
503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code (other than
the Liquidating Trustee and any Retained Liquidation Professionals) shall file
and serve on counsel for the Liquidating Debtors and as otherwise required by
the Court and the 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. Any request for payment of an Administrative Expense Claim of the type
specified in Section 2.3(a) of this Liquidation Plan, 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 these 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 the
Liquidating Trustee and counsel for the Reorganized 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 Liquidating Trustee on or
before the Administrative Expense Claim Bar Date. Unless the Liquidating Trustee
or any other party in interest permitted under the Bankruptcy Code 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 Liquidating Trustee 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 which is incurred and
payable by the Liquidating Debtors or Liquidating Trustee 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 Liquidating Debtors or any property of the
Liquidating Trust.
2.4 Priority Tax Claims. Subject to the consent of [the requisite New
Facility Lenders and Additional New Lenders, (as defined by the Reorganization
Plan)], 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 Liquidating Trustee, the Liquidating Trustee 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, provided, further, that in no event shall
the Liquidating Trustee extend such date of repayment beyond the Final
Liquidation Determination Date. If the Liquidating Trustee elects this option as
to any Allowed Priority Tax Claim, then the Liquidating Trustee 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 Liquidating Trustee, provided, however, that the Liquidating
Trustee shall reserve the right to pay any Allowed Priority Tax Claim, or any
remaining balance of such Allowed Priority Tax Claim, in full, at any time on or
after the Effective Date, without premium or penalty.
2.5 DIP Financing Facility Claims. On the Effective Date, the
Liquidating Debtors shall perform their obligations under the DIP Lender
Direction and, subject to Section 2.5 of the Reorganization Plan, and in
consideration of the Reorganizing Debtors' and Heber Debtors' obligations under
Section 2.5 of the Reorganization Plan, all amounts outstanding under the DIP
Financing Facility and all commitments thereunder shall automatically and
irrevocably terminate.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 General Rules of Classification. This Liquidation Plan constitutes
a Joint Liquidation Plan of the Liquidating 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 listed below shall be applicable for all purposes, including
voting, confirmation, and distribution pursuant to the Liquidation Plan. As to
each Liquidating 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 Liquidating Debtor, to each Class of Claims and
Equity Interests denominated in this Liquidation Plan.
No Claim shall entitle the holder thereof to any Distribution
pursuant to this Liquidation 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 Effective Date or the applicable Liquidation Distribution Date,
as the case may be.
4.1 Class 1 -- Allowed Priority Non-Tax Claims.
(a) Classification: Class 1 consists of all Allowed Priority
Non-Tax Claims.
(b) Treatment: In full settlement, release and discharge of
its Class 1 Claim, each holder of an Allowed Claim in Class 1 shall receive Cash
in an amount equal to such Allowed Class 1 Claim on the Initial Liquidation
Distribution Date.
(c) Voting: Class 1 Claims are Unimpaired, and the holders of
Allowed Class 1 Claims are conclusively presumed to accept the Liquidation Plan.
The votes of the holders of Class 1 Claims will not be solicited.
4.2 Class 2 -- Intentionally Omitted.
4.3 Subclass 3A -- Allowed Liquidation Secured Claims.
(a) Classification: Class 3A consists of all Allowed
Liquidation Secured Claims against the Liquidating Pledgor Debtors, which
include Secured Bank Claims and 9.25% Debenture Claims.
(b) Allowance: The aggregate amount of Allowed Liquidation
Secured Claims in Subclass 3A shall be determined as set forth in accordance
with the definition of the term Allowed Subclass 3A Liquidation Secured Claim.
(c) Treatment: In full settlement, release and discharge of
its Class 3A Claim, (I) (a) each holder of an Allowed Liquidation Secured Claim
would be entitled, absent the Secured Creditor Direction, to receive on any
Liquidation Distribution Date, such holder's Pro Rata Class Share of the sum of
any Net Liquidation Proceeds and Liquidation Assets of the Liquidating Pledgor
Debtors existing, but not yet distributed on such Liquidation Distribution Date
and (b) on the Effective Date, (i) such holder of a Class 3A Allowed Liquidation
Secured Claim shall be deemed to have received, on account of its Subclass 3A
Allowed Liquidation Secured Claim, the Distribution it receives as a holder of a
Subclass 3A or Subclass 3B Claim under the Reorganization Plan, as applicable,
in full satisfaction of its Subclass 3A Claim under the Liquidation Plan and
(ii) the Liquidating Trustee and the Liquidating Debtors will implement the
Secured Creditor Direction and (II) each holder of an Allowed Liquidation
Secured Claim shall be entitled to receive on any Liquidation Distribution Date,
such holder's Pro Rata Class Share of any Net Liquidation Proceeds of any
Liquidating Pledgor Debtor's Residual Liquidation Assets.
(d) Voting: Class 3A Claims are Impaired and the holders of
Allowed Class 3A Claims in such Class are entitled to vote to accept or reject
the Liquidation Plan.
4.4 Subclass 3B -- Allowed Secured CSFB Claim.
(a) Classification: Class 3B consists of the Allowed Secured
CSFB Claim against Ogden FMCA.
(b) Allowance: The Class 3B Claim shall be Allowed in the
aggregate amount of the value of the Bank Agreement Ogden FMCA Collateral.
(c) Treatment: On the Effective Date, or as soon thereafter as
practicable, Ogden FMCA shall cause to be transferred, pursuant to Section
6.1(b) of this Liquidation Plan, to CSFB, in its capacity as holder of the
Allowed Secured CSFB Claim, the Bank Agreement Ogden FMCA Collateral, in full
settlement, release and discharge of its Class 3B Claim.
(d) Voting: The Class 3B Claim is Impaired, and the holder of
the Allowed Class 3A Claim in such Class is entitled to vote to accept or reject
the Liquidation Plan.
4.5 Class 4 -- Intentionally Omitted.
4.6 Class 5 -- Intentionally Omitted.
4.7 Class 6 -- Intentionally Omitted.
4.8 Class 7 -- Unsecured Liquidation Claims.
(a) Classification: Class 7 consists of all Allowed Unsecured
Liquidation Claims.
(b) Treatment: The holders of Class 7 Claims shall not be
entitled to receive any Distribution under this Liquidation Plan.
(c) Voting: Class 7 Claims are Impaired and the holders of
Allowed Claims in such Class are conclusively presumed to reject the Liquidation
P1an. The votes of holders of Class 7 Claims will not be solicited. With respect
to Allowed Class 7 Claims for and to the extent which insurance is available,
such Allowed Class 7 Claims shall be paid in the ordinary course of business to
the extent of such insurance, which any such Claims become Allowed Claims and
such insurance proceeds become available; provided, however, that to the extent
that insurance is not available or is insufficient, treatment of such Allowed
Class 7 Claim shall be as otherwise provided in this Liquidation Plan.
4.9 Class 8 -- Intentionally Omitted.
4.10 Class 9 -- Intercompany Claims.
(a) Classification: Class 9 consists of all Intercompany
Claims.
(b) Treatment: On the Effective Date, all Intercompany Claims
shall be cancelled, annulled and extinguished. Holders of such claims shall
receive no distributions in respect of Class 9 Claims.
(c) Voting: Class 9 Claims are impaired and holders of Allowed
Claims in such Class are conclusively presumed to reject this Liquidation Plan.
The votes of the holders of Class 9 Claims will not be solicited.
4.11 Class 10 -- Intentionally Omitted.
4.12 Class 11 -- Equity Interests in the Liquidating Debtors.
(a) Classification: Class 11 consists of all Equity Interest
in Liquidating Debtors.
(b) Treatment: On and after the Effective Date, all Equity
Interests in the Liquidating Debtors shall not be entitled to receive any
Distributions under this Liquidation Plan. Such Equity Interests shall be
cancelled, annulled and extinguished.
(c) Voting: Class 11 Equity Interests are Impaired and the
holders of Equity Interests in such Class are conclusively presumed to reject
the Liquidation Plan. The votes of holders of Equity Interests in such Class
will not be solicited.
4.13 Class 12 -- Intentionally Omitted.
4.14 Class 13 -- Intentionally Omitted.
ARTICLE V
ACCEPTANCE OR REJECTION OF THE LIQUIDATION 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 Class 3 shall be entitled to vote to accept or reject this Liquidation
Plan. For purposes of calculating the number of Allowed Claims in a Class of
Claims that have voted to accept or reject this Liquidation 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 Liquidation 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 Liquidation Plan.
5.3 Presumed Acceptance of Plan. Holders of Claims in Class 1 are
Unimpaired by this Liquidation Plan. In accordance with section 1126(f) of the
Bankruptcy Code, holders of Allowed Claims in Class 1 are conclusively presumed
to accept this Liquidation Plan and the votes of holders of such Claims will not
be solicited.
5.4 Presumed Rejection of Plan. Claims in Class 7, Class 9 and Equity
Interests in Class 11 are Impaired and holders of Class 7 Claims, Class 9 Claims
and Class 11 Equity Interests are not entitled to receive any Distribution under
this Liquidation Plan on account of such Claims or Equity Interests. In
accordance with section 1126 of the Bankruptcy Code, holders of Allowed
Unsecured Liquidation Claims in Class 7, Allowed Intercompany Claims in Class 9
and holders of Allowed Equity Interests in Class 11 are conclusively presumed to
reject this Liquidation 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 Liquidation Plan, the Liquidating Debtors reserve
the right to (a) request that the Court confirm the Liquidation Plan in
accordance with section 1129(b) of the Bankruptcy Code, or (b) modify, alter or
amend this Liquidation Plan to provide treatment sufficient to assure that this
Liquidation Plan does not discriminate unfairly, and is fair and equitable, with
respect to the Class or Classes not accepting this Liquidation 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 Actions Occurring On the Effective Date.
(a) The Funding of the Implementation of the Liquidation Plan.
On the Effective Date, the Liquidating Pledgor Debtors and the Liquidating
Trustee will implement the Secured Creditor Direction and the DIP Lender
Direction. The Secured Creditor Direction and the DIP Lender Direction will
operate to fund the implementation of the Liquidation Plan by requiring that
$500,000 of the Liquidation Proceeds that would otherwise be transferred to
Reorganized Covanta will remain in the accounts of the Liquidating Debtors and
shall be transferred by the Liquidating Trustee to the Operating Reserve,
provided, however, to the extent that the sum of all the Cash in the accounts of
the Liquidating Debtors is less than $500,000 on the Effective Date (any such
shortfall, the "Operating Reserve Deficiency Amount"), then (i) the Liquidating
Trustee shall transfer the sum of all such Cash in the Liquidating Debtors'
accounts to the Operating Reserve and (ii) Reorganized Covanta shall transfer
the Operating Reserve Deficiency Amount to the operating Reserve. The Operating
Reserve will be used to fund this Liquidation Plan in accordance with Section
9.14(b) of this Liquidation Plan.
(b) Transfer of Liquidation Assets. On the Effective Date,
each Liquidating Debtor shall irrevocably transfer and assign its Residual
Liquidation Assets, if any, or cause such Residual Assets to be transferred and
assigned to the Liquidating Trust, to hold in trust for the benefit of all
holders of Allowed Claims with respect to each such Liquidating Debtor pursuant
to the terms of this Liquidation Plan and of the Liquidating Trust Agreement,
provided, however, that prior to the transfers contemplated hereby, the
Liquidating Trustee and Liquidating Debtors, as applicable, shall make the
transfers contemplated by the Secured Creditor Distribution and the DIP Lender
Direction to Reorganized Covanta and to the Operating Reserve. In accordance
with section 1141 of the Bankruptcy Code and except as otherwise provided by
this Liquidation Plan or the Liquidating Trust Agreement, upon the Effective
Date, title to the Residual Liquidation Assets shall pass to the Liquidating
Trust free and clear of all Claims and Equity Interests. The Liquidating Trustee
shall pay, or otherwise make Distributions on account of, all Claims against the
Liquidating Debtors whose Residual Liquidation Assets were contributed to such
Liquidating Trust strictly in accordance with this Liquidation Plan. For U.S.
federal income tax purposes, the transfers of the Liquidating Debtors' Residual
Liquidation Assets to the Liquidating Trust shall be deemed transfers to and for
the benefit their respective beneficiaries followed by deemed transfer by the
beneficiaries to the Liquidating Trust. The beneficiaries shall be treated as
the grantors and deemed owners of the Liquidating Trust. The Liquidating Trustee
shall cause a valuation to be made of the Liquidation Assets and that valuation
shall be used by the Liquidating Trustee and the beneficiaries for U.S. federal
income tax purposes, but shall not be binding on the Liquidating Trustee in
regards to the liquidation of the Residual Liquidation Assets.
(c) Distribution of the Bank Agreement Ogden FMCA Collateral.
On the Effective Date, or as soon thereafter as practicable, Ogden FMCA shall
cause to be transferred to CSFB, as holder of the Allowed Secured CSFB Claim,
the Bank Agreement Ogden FMCA Collateral free and clear of all Claims and Equity
Interests, in accordance with section 1141 of the Bankruptcy Code, and except as
otherwise provided by this Liquidation Plan.
(d) Dissolution of Liquidating Debtors. Following the
transfers contemplated in Subsection 6.1(a) hereof and pursuant to the DIP
Lender Direction, each Liquidating Debtor shall be dissolved pursuant to
applicable state law. The Liquidating Trustee shall have all the power to wind
up the affairs of each Liquidating Debtor under applicable state laws (including
the filing of certificates of dissolution) in addition to all the rights, powers
and responsibilities conferred by Bankruptcy Code, this Liquidation Plan, the
Confirmation Order and the Liquidating Trust Agreement.
6.2 Fractional Interests. Whenever any payment of a fraction of a cent
would otherwise be called for, the actual payment shall reflect a rounding of
such fraction down to the nearest whole cent.
6.3 Date of Distributions. Unless otherwise provided herein, any
distributions and deliveries to be made to holders of Allowed Claims hereunder
shall be made on the applicable Liquidation Distribution Date or as soon
thereafter as is practicable. In the event that any payment or act under this
Liquidation 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.
6.4 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, any settlement agreements entered into by
any Liquidating Debtor or any other Person as contemplated in confirmation of
the Liquidating Plan and (b) entered into or to be entered into by any
Liquidating Debtor or any other Person as contemplated by the Liquidating Plan
and all related agreements, instruments or documents to which any Liquidating
Debtor is a party.
6.5 No Interim Cash Payments of $100 or Less on Account of Allowed
Claims Prior to Final Liquidation Distribution Date. If a Cash payment to be
received by holders of Allowed Claims on any distribution (except the Final
Distribution) would be $100 or less in the aggregate, notwithstanding any
contrary provision of this Liquidation Plan, no such payment will be made to
such holder, and such Cash, if applicable, shall be held in trust for such
holders until the Final Liquidation Distribution Date, at which time such Cash
payment shall be made to the holders.
6.6 Unclaimed Property. All property that is unclaimed for one year
after distribution thereof by mail to the latest mailing address filed of record
with the Court for the party entitled thereto or, if no such mailing address has
been so filed, the mailing address reflected in the applicable Liquidating
Debtor's schedules filed with the Court or other address maintained by the
Liquidating Debtors, shall become property of the Liquidating Trust.
6.7 Withholding Taxes. The Liquidating Trustee shall be entitled to
withhold any applicable federal or state withholding taxes from any payments
made with respect Allowed Claims, as appropriate, and shall otherwise comply
with section 346 of the Bankruptcy Code.
6.8 Reservation of Rights of the Estate. As to each Liquidating Debtor,
all claims or causes of action, cross-claims and counterclaims of such
Liquidating Debtor of any kind or nature whatsoever, against third parties
arising before the Confirmation Date shall be preserved for the benefit of the
Liquidating Trust except for (i) such claims or causes of action, cross-claims
and counterclaims of the Liquidating Debtors which have been released hereunder
or pursuant to a Final Order and (ii) such claims or causes of action, cross
claims and counterclaims of the Liquidating Debtors that have been transferred
to Reorganized Covanta pursuant to the Secured Creditor Direction and the DIP
Lender Direction.
ARTICLE VII
PROCEDURES FOR RESOLVING AND TREATING DISPUTED CLAIMS
7.1 No Distribution Pending Allowance. Notwithstanding any other
provision of this Liquidation Plan, no Distribution shall be distributed under
this Liquidation 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.
7.2 Resolution of Disputed Claims and Equity Interests.
(a) Unless otherwise ordered by the Court after notice and a
hearing, the Liquidating Trustee 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 Liquidating
Trustee, 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 filing objections to Claims for tort damages and,
accordingly, no such deadline shall be imposed by this Liquidation Plan.
Notwithstanding any authority to the contrary, an objection to a Claim shall be
deemed properly served on the holder thereof if the Liquidating Trustee effects
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
Liquidating Debtors (if prior to the Effective Date) and counsel for the
Liquidating Trustee (if after the Effective Date) on or before the
Administrative Expense Claim Bar Date. The Liquidating Debtors, the Liquidating
Trustee 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 the Claims
Objection Deadline. In the event the Liquidating Debtors or the Liquidating
Trustee 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 Liquidating Debtors
or the Liquidating Trustee in the ordinary course of business.
7.3 Estimation of Claims and Equity Interests. The Liquidating Trustee
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 Liquidating 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 Liquidating Trustee 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.
7.4 Reserve Account for Disputed Claims. Upon (i) the Liquidating
Trustee's determination that Disputed Claims have been asserted against a
Liquidating Debtor in any particular Class and (ii) the Liquidating Trustee's
identification of Liquidation Proceeds that are not Collateral, the Liquidating
Trustee shall establish the Disputed Claims Reserve in accordance with Section
9.14(a) of this Liquidation Plan and hold in the Disputed Claims Reserve, for
each Class in which there are any Disputed Claims, Cash in an aggregate amount
sufficient to pay to each holder of a Disputed Claim the amount of Cash that
such holder would have been entitled to receive under this Liquidation Plan if
such Claim had been an Allowed Claim in such Class. Cash withheld and reserved
for payments to holders of Disputed Claims in any Class shall be held and
deposited by the Liquidating Trustee 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.
7.5 Allowance of Disputed Claims. With respect to any Disputed Claim
that is subsequently deemed Allowed, on the succeeding Liquidation Distribution
Date for any such Claim after such Claim becomes Allowed, the Liquidating
Trustee 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 that such holder would have been entitled to recover
under this Liquidation 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 the 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 immediately preceding 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.
ARTICLE VIII
TREATMENT OF EXECUTORY
CONTRACTS AND UNEXPIRED LEASES
8.1 General Treatment.
(a) On the Effective Date, all executory contracts and
unexpired leases to which each Liquidating Debtor is a party shall be deemed
rejected as of the Effective Date, except for any executory contract or
unexpired lease 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 Schedule of Assumed Contracts and Leases or (iii) is the subject of a
separate motion to assume or reject filed under section 365 of the Bankruptcy
Code by the Liquidating Debtors prior to the Confirmation Hearing. On the
Effective Date, all executory contracts and unexpired leases listed on the
Schedule of Assumed Contracts and Leases to which each Liquidating Debtor is
party shall be deemed assumed by the applicable Liquidating Debtor and assigned
to Reorganized Covanta.
(b) Each executory contract and unexpired lease listed or to
be listed on the Schedule of Assumed Contracts and Leases shall include
modifications, amendments, supplements, restatements or other agreements,
including guarantees thereof, made directly or indirectly by any Liquidating
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 Schedule of Assumed
Contracts and Leases. The mere listing of a document on the Schedule of Assumed
Contracts and Leases shall not constitute an admission by the Liquidating
Debtors that such document is an executory contract or unexpired lease or that
the Liquidating Debtors have any liability thereunder.
8.2 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 8.1 hereof 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 Liquidating 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 with the Court 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 Liquidating Debtor shall have
fifteen (15) days from service of such pleading to object to the cure amounts
listed by the applicable Liquidating 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 Liquidating
Debtors' books and records, including the Schedules, provided, however, that if
a pleading served by a Liquidating Debtor to one of the foregoing addresses is
promptly returned as undeliverable, the Liquidating Debtor shall attempt
reservice of the pleading on an alternative address, if any, from the above
listed services. If any objections are filed, the Court shall hold a hearing.
Prior to assumption, the applicable Liquidating 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 8.3 of this
Liquidation 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 Liquidating Debtors shall have the right to reject such
executory contract or unexpired lease.
8.3 Approval of Assumption and Assignment of Executory Contracts on the
Schedule of Assumed Contracts and Leases. Subject to Sections 8.1 and 8.2 of
this Liquidation Plan, the executory contracts and unexpired leases on the
Schedule of Assumed Contracts and Leases shall be assumed by the respective
Liquidating Debtors as indicated on such schedule and shall be assigned to
Reorganized Covanta, as of the Effective Date, except as may otherwise be
ordered by the Court.
8.4 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 8.1 of this Liquidation Plan.
8.5 Bar Date for Filing Proofs of Claim Relating to Executory Contracts
and Unexpired Leases Rejected Pursuant to the Liquidation Plan. Claims arising
out of the rejection of an executory contract or unexpired lease pursuant to
Section 8.1 of this Liquidation 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 contract or lease. Any Claims not
filed within such time period will be forever barred from assertion against any
of the applicable Liquidating Debtors and/or the Estates.
8.6 Reservation of Rights Under Insurance Policies and Bonds. Nothing
in this Liquidation Plan shall diminish or otherwise affect the enforceability
by beneficiaries of (i) any insurance policies that may cover Claims against any
Liquidating Debtor, or (ii) any bonds issued to assure the performance of any of
the Liquidating Debtors, nor shall anything contained herein constitute or be
deemed to constitute a waiver of any cause of action that the Liquidating
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 VIII of the Liquidation Plan.
Notwithstanding the foregoing, the Liquidating Debtors do not assume any payment
or other obligations to any insurers or issuers of bonds, and any agreements or
provisions of policies or bonds imposing payment or other obligations upon the
Liquidating Debtors shall only be assumed pursuant to a separate order of the
Court.
ARTICLE IX
THE LIQUIDATING TRUSTEE
9.1 Appointment. The Liquidating Trustee shall be designated by the
Liquidating Debtors in the Notice of Designation, which shall be filed with the
Court on or before thirty (30) days prior to the Confirmation Hearing. The
Liquidating Trustee's appointment shall become effective upon the occurrence of
the Effective Date.
9.2 Compensation of the Liquidating Trustee for Dissolution Expenses.
The Liquidating Trustee shall be paid for all reasonable and necessary
Dissolution Expenses (including the reasonable and necessary fees and expenses
of Retained Liquidation Professionals) out of the Operating Reserve in the
following manner. On or before any Liquidating Trustee Billing Date, the
Liquidating Trustee shall send the Liquidating Trustee Fee Notice and any
Retained Liquidation Professional Fee Notices to the Oversight Nominee. Fifteen
(15) days after sending the Liquidating Trustee Fee Notice to the Oversight
Nominee and any Retained Liquidation Professional Fee Notices, the Liquidating
Trustee shall be entitled to withdraw from the Operating Reserve the Dissolution
Expenses claimed in such Liquidating Trustee Fee Notice and such Retained
Liquidation Professional Fee Notice, provided, however, that if the Oversight
Nominee sends a Fee Dispute Notice within such fifteen (15) day period to the
Liquidating Trustee or a Retained Liquidation Professional, then the Liquidating
Trustee shall only be entitled to withdraw any undisputed portion of such
Dissolution Expenses from the Operating Reserve on such date. As to the disputed
portion of such Dissolution Expenses, within five (5) days receipt of the Fee
Dispute Notice, the Liquidating Trustee or applicable Retained Liquidation
Professional must either (a) notify the Oversight Nominee that it will reduce
the Dissolution Expenses in accordance with the Fee Dispute Notice or (b)
commence a proceeding in the Court to determine the reasonableness, accuracy or
proper scope of the disputed Dissolution Expenses. The Liquidating Trustee shall
be paid for all Liquidation Expenses in the manner specified in Section 9.3 of
this Liquidation Plan.
9.3 Recovery or Realization of Liquidation Proceeds. To the extent that
the Liquidating Trustee determines in its sole discretion that it could
profitably realize Liquidation Proceeds from the sale, transfer, collection or
monetization of any Residual Liquidation Assets, which shall not include any of
the Liquidation Assets transferred to Reorganized Covanta pursuant to the
Secured Creditor Direction or the DIP Lender Direction, or the Cash transferred
to the Operating Reserve pursuant to the Secured Creditor Direction, then the
Liquidating Trustee shall liquidate such Residual Liquidation Assets in
accordance with the provisions of this Liquidation Plan. Alternatively, if the
Liquidating Trustee determines that it would not be profitable to pursue the
sale, transfer, collection or monetization of any Residual Liquidation Assets of
any respective Liquidating Debtor, then the Liquidating Trustee shall abandon
such assets in accordance with Section 9.10 of this Liquidation Plan. All
Liquidation Expenses incurred by the Liquidating Trustee in the sale, transfer,
collection or monetization of Residual Liquidation Assets shall be paid only
from the recoveries therefrom.
9.4 Distributions. On the Liquidation Distribution Date following the
realization of any Liquidation Proceeds from the sale, transfer, collection or
monetization of any Residual Liquidation Assets, the Liquidating Trustee shall
distribute any Net Liquidation Proceeds to the holders of Allowed Claims in
accordance with this Liquidation Plan. The Liquidating Trustee shall provide
notice to the Oversight Nominee in the Liquidation Trustee Billing Notice of (i)
the realization of any Liquidation Proceeds; and (ii) any planned Distribution
of any Net Liquidation Proceeds to be made on the next Liquidation Distribution
Date.
9.5 Engagement of Professionals. The Liquidating Trustee shall obtain
the approval of the Oversight Nominee prior to retention and engagement of any
Retained Liquidation Professionals. Such approval shall not be unreasonably
delayed or withheld. Each Retained Liquidation Professional shall submit its
Retained Liquidation Professional Fee Notice to the Liquidating Trustee five (5)
days prior to the Liquidating Trustee Billing Date. The fees and expenses of
such professionals shall be (i) paid by the Liquidating Trustee out of the
Operating Reserve so long as such fees and expenses constitute Dissolution
Expenses and (ii) paid from the sale, transfer, collection or monetization of
any Liquidation Assets, so long as the fees and expenses constitute Liquidation
Expenses. The fees and expenses of Retained Liquidation Professionals are
subject to the approval of the Oversight Nominee and any disputes concerning the
fees and expenses of Retained Professionals will be dealt with in accordance
with Section 9.2 of this Liquidation Plan.
9.6 Status of the Liquidating Trustee. Effective on the Effective Date,
the Liquidating Trustee shall be the representative of each Liquidating Debtor's
Estate as that term is used in section 1123(b)(3)(B) of the Bankruptcy Code and
shall have the rights and powers provided for in the Liquidating Trust
Agreement. In its capacity as the representative of an Estate, the Liquidating
Trustee shall be the successor-in-interest to each Liquidating Debtor with
respect to any action commenced by such Liquidating Debtor prior to the
Confirmation Date, except with respect to the Claims of the Liquidating Pledgor
Debtors and the Liquidating Non-Pledgor Debtors contributed to Reorganized
Covanta pursuant to the Secured Creditor Direction and the DIP Lender Direction.
All such actions and any and all other claims or interests constituting
Liquidation Assets, and all claims, rights and interests thereunder shall be
retained and enforced by the Liquidating Trustee as the representative of such
Estate pursuant to section 1123(b)(3)(B) of the Bankruptcy Code. The Liquidating
Trustee shall be a party in interest as to all matters over which the Court has
jurisdiction.
9.7 Authority. Subject to the limitations contained herein, the
Liquidating Trustee shall have, with respect to the Liquidating Debtors, the
following powers, authorities, and duties, by way of illustration and not of
limitation:
(a) Manage, sell and convert all or any portion of the
Liquidation Assets to Cash and distribute the Net Liquidation Proceeds as
specified in this Liquidation Plan;
(b) Release, convey or assign any right, title or interest in
or about the Residual Liquidation Assets or any portion thereof;
(c) Pay and discharge any costs, expenses and fees of Retained
Liquidation Professionals and other obligations deemed necessary to preserve or
enhance the value of the Residual Liquidation Assets, discharge duties under the
Liquidation Plan or perform the purpose of the Liquidation Plan;
(d) Open and maintain bank accounts and deposit funds and draw
checks and make disbursements in accordance with the Liquidation Plan;
(e) Engage and have such attorneys, accountants, agents, tax
specialists, financial advisors, other professionals, and clerical assistance as
may, in the discretion of the Liquidating Trustee, be deemed necessary for the
purposes specified under this Liquidation Plan;
(f) Sue and be sued and file or pursue objections to Claims
and seek to estimate them;
(g) Enforce, waive or release rights, privileges or immunities
of any kind;
(h) In general, without in any manner limiting any of the
foregoing, deal with the Liquidation Assets or any part or parts thereof in all
other ways as would be lawful for any person owning the same to deal therewith,
whether similar to or different from the ways herein specified;
(i) Abandon any Liquidation Assets in accordance with Section
9.10 hereof;
(j) File certificates of dissolution and take any other action
necessary to dissolve and wind up the affairs of the Liquidating Debtors in
accordance with applicable state law;
(k) As soon as is practicable after the Final Liquidation
Distribution Date of each Liquidating Debtor, request the Court to enter the
Final Order closing the Chapter 11 Case of each such Liquidating Debtor; and
(l) Without limitation, do any and all things necessary to
accomplish the purposes of the Liquidation Plan.
9.8 Objectives. In selling the Residual Liquidation Assets, or
otherwise monetizing them, the Liquidating Trustee shall use its best efforts to
maximize the amount of Liquidation Proceeds derived therefrom. The Liquidating
Trustee shall cause all Residual Liquidation Assets not otherwise abandoned to
be sold or otherwise monetized by the second anniversary of the Effective Date.
9.9 Distributions. The Liquidating Trustee shall be responsible for
making Distributions described in this Liquidation Plan, and shall coordinate,
as necessary, to make the transfers of the Distributions and other Liquidation
Assets as contemplated by the Secured Creditor Direction and the DIP Lender
Direction.
9.10 Abandonment. The Liquidating Trustee may abandon, on thirty (30)
days' written notice to the Oversight Nominee and United States Trustee, any
property which he or she determines in its reasonable discretion to be of de
minimis value to the Liquidating Trust, including any pending adversary
proceeding or other legal action commenced or commenceable by the Liquidating
Trust. If either the Oversight Nominee or United States Trustee provides a
written objection to the Liquidating Trustee prior to expiration of such
thirty-day period with respect to the proposed abandonment of such property,
then such property may be abandoned only pursuant to an application made to the
Court. In the absence of any such objection, such property may be abandoned
without further order of the Court.
9.11 No Recourse. No recourse shall ever be had, directly or
indirectly, against the Liquidating Trustee personally or against any agent,
employee or Retained Liquidation Professional of the Liquidating Trustee, by
legal or equitable proceedings or by virtue any statute or otherwise, nor upon
any promise, contract, instrument, undertaking, obligation, covenant or
agreement whatsoever executed by the Liquidating Trustee under this Liquidation
Plan, or by reason of the creation of any indebtedness by the Liquidating
Trustee under this Liquidation Plan for any purpose authorized by this
Liquidation Plan, it being expressly understood and agreed that all such
liabilities, covenants, and agreements of the Liquidating Trustee, whether in
writing or otherwise, shall be enforceable only against and be satisfied only
out of the Residual Liquidation Assets or such part thereof as shall, under the
terms of any such agreement, be liable therefor or shall be evidence only of a
right of payment out of the Residual Liquidation Assets provided, however, that
nothing contained in this Section 9.11 shall affect the liability of any of the
parties listed above for gross negligence or willful misconduct.
9.12 Limited Liability. The Liquidating Trustee shall not be liable for
any act he or she may do or omit to do while acting in good faith and in the
exercise of its best judgment, and the fact that such act or omission was
advised by an authorized attorney (or other Retained Liquidation Professional)
for the Liquidating Trustee shall be conclusive evidence of such good faith and
best judgment; nor shall the Liquidating Trustee be liable in any event, except
for its gross negligence or willful misconduct.
9.13 Resignation. The Liquidating Trustee may resign at any time by
giving at least thirty (30) days' written notice to the Oversight Nominee and
the United States Trustee. In case of the resignation, removal or death of a
Liquidating Trustee, a successor shall thereupon be appointed by agreement of
the Oversight Nominee and the United States Trustee.
9.14 Reserves.
(a) The Disputed Claims Reserve. Upon (i) the Liquidating
Trustee's determination that Disputed Claims have been asserted against a
Liquidating Debtor and (ii) the Liquidating Trustee's identification of Net
Liquidation Proceeds that are not Collateral, the Liquidating Trustee shall
establish the Disputed Claims Reserve, in order to make disbursements to each
holder of a Disputed Claim against the applicable Liquidating Debtor, as
provided in Article VII of this Liquidation Plan, whose Claim is or becomes an
Allowed Claim, as the case may be, in the amount specified in the Final Order
allowing such Disputed Claim on the Liquidation Distribution Date occurring
after such order becomes a Final Order.
(b) The Operating Reserve. On the Effective Date, the
Liquidating Trustee shall establish the Operating Reserve in order to pay all
Administrative Expense Claims, Priority Tax Claims and Priority Non-Tax Claims
of the Liquidating Debtors and any Oversight Nominee Expenses and Dissolution
Expenses. The Operating Reserve shall be funded in an amount not to exceed
$500,000, pursuant to the Secured Creditor Direction and Reorganized Covanta's
payment of the Operating Reserve Deficiency Amount, if any. Upon the latest to
occur of (i) the entry of the Final Order closing each of the Liquidating
Debtors' Chapter 11 Cases, (ii) the Final Liquidation Determination Date and
(iii) the final payment of any Dissolution Expenses and Oversight Nominee
Expenses, to the extent that there is any Cash in the Operating Reserve, the
Liquidating Trustee shall contribute such Cash to Reorganized Covanta.
9.15 Statements. (a) The Liquidating Trustee shall maintain a record of
the names and addresses of all holders of Allowed Unsecured Liquidation Claims
against the applicable Liquidating Debtor for purposes of mailing Distributions
to them. The Liquidating Trustee may rely on the name and address set forth in
the applicable Liquidating Debtor's schedules filed with the Court, except to
the extent a different name and/or address shall be set forth in a proof of
claim filed by such holder in the cases, and the Liquidating Trustee may rely on
the names and addresses in such schedules and/or proof of claim as being true
and correct unless and until notified in writing.
(b) The Liquidating Trustee shall file all tax returns and
other filings with Governmental Units on behalf of the Liquidating Trust and the
Residual Liquidation Assets it holds.
9.16 Further Authorization. The Liquidating Trustee shall be entitled
to seek such orders, judgments, injunctions and rulings as they deem necessary
to carry out the intentions and purposes, and to give full effect to the
provisions, of this Liquidation Plan.
ARTICLE X
APPOINTMENT OF THE OVERSIGHT NOMINEE
10.1 Appointment of the Oversight Nominee. The Oversight Nominee shall
be designated by the Liquidating Debtors in the Notice of Designation, which
shall be filed with the Court on or before thirty (30) days prior to the
Confirmation Hearing. The appointment of the Oversight Nominee shall become
effective upon the occurrence of the Effective Date.
10.2 Authority and Responsibility of the Oversight Nominee. The
Oversight Nominee shall have the authority and responsibility to review the
activities and performance of the Liquidating Trustee, and shall have the
authority to remove and replace the Liquidating Trustee. It shall have such
further authority as may be specifically granted or necessarily implied by this
Liquidation Plan.
10.3 Limited Liability. The Oversight Nominee shall not be liable for
anything other than its own acts as shall constitute willful misconduct or gross
negligence of its duties. None of the Oversight Nominee's designees, agents or
representatives or their respective employees, shall incur or be under any
liability or obligation by reason of any act done or omitted to be done, by the
Oversight Nominee or its designee, agent or representative or their employees.
The Oversight Nominee may, in connection with the performance of its functions,
and in its sole and absolute discretion, consult with counsel, accountants and
its agents, and shall not be liable for anything done or omitted or suffered to
be done in accordance with such advice or opinions. If the Oversight Nominee
determines not to consult with counsel, accountants or its agents, such
determination shall not be deemed to impose any liability on the Oversight
Nominee.
10.4 The Oversight Nominee Expenses. The Oversight Nominee Expenses
shall be paid by the Liquidating Trustee out of the Operating Reserve.
ARTICLE XI
CONDITIONS PRECEDENT TO THE CONFIRMATION AND THE EFFECTIVE DATE
11.1 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 Liquidating Debtors;
(c) all provisions, terms and conditions of this Liquidation
Plan are approved in the Confirmation Order;
(d) the Confirmation Order shall contain a finding that any
Intercompany Claim held by a Liquidating Debtor, Reorganizing Debtor or Heber
Debtor is the exclusive property of such Liquidating Debtor, Reorganizing Debtor
or Heber Debtor or debtor-in-possession pursuant to section 541 of the
Bankruptcy Code; and
(e) the Confirmation Order shall contain a ruling that each of
the Intercompany Claims against (i) the Reorganizing Debtors, the Heber Debtors
and the Liquidating 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 12.9 of this Liquidation Plan will be fully settled and released as
of the Effective Date.
11.2 Conditions Precedent to the Effective Date. Each of the following
is a condition precedent to the Effective Date of this Liquidation Plan:
(a) That the Confirmation Order (i) shall have been entered by
the Court and become a Final Order (ii) be in form and substance satisfactory to
the Liquidating Debtors and (iii) provide that the Liquidating Debtors, the
Reorganizing Debtors, the Heber Debtors and the Reorganized 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) that the Liquidating Trustee has entered into the
Liquidating Trust Agreement, with the Liquidating Debtors and is willing to
serve in such capacity and the terms of its service and compensation shall have
been approved by the Court at the Confirmation Hearing;
(c) that the conditions precedent to the Effective Date of the
Reorganization Plan shall have been satisfied or waived;
(d) the Liquidating Debtors, the Reorganizing Debtors and the
Heber Debtors shall be authorized and directed to take all actions necessary or
appropriate to enter into, implement and consummate the contracts, instruments,
releases, leases, indentures and the agreements or documents created in
connection with the Liquidation Plan and the Reorganization Plan; and
(e) all actions, documents and agreements necessary to
implement the Liquidation Plan and the Reorganization Plan shall have been
effected or executed.
11.3 Waiver of Conditions. The Liquidating Debtors may waive any of the
foregoing conditions set forth in Section 11.1 and 11.2 of this Liquidation Plan
without leave of or notice to the Court and without any formal action other than
proceeding with confirmation of this Liquidation Plan or emergence from
bankruptcy.
11.4 Failure to Satisfy or Waiver of Conditions Precedent. In the event
that any or all of the conditions specified in Section 11.1 or 11.2 of this
Liquidation Plan have not been satisfied or waived in accordance with the
provisions of this Article XI on or before December 19, 2003 (which date may be
extended by the Liquidating Debtors, and upon notification submitted by the
Liquidating 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
Liquidation Plan shall be made, (c) the Liquidating 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 Liquidating 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 interests or to constitute a waiver or release of any claims
by or against any Liquidating Debtor or any other Person or to prejudice in any
manner the rights of any Liquidating Debtor or any Person in any further
proceedings involving any Liquidating Debtor or any Person.
ARTICLE XII
EFFECT OF CONFIRMATION
12.1 Discharge. Pursuant to section 1141(d)(3) of the Bankruptcy Code,
occurrence of the Confirmation Date will not discharge Claims against the
Liquidating Debtors; provided, however, that no holder of a Claim against any
Liquidating Debtor may, on account of such Claim, seek or receive any payment or
other distribution from, or seek recourse against, any Liquidating Debtor,
Reorganizing Debtor or Heber Debtor their respective successors or their
respective property, except as expressly provided herein.
12.2 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 Liquidation Plan shall bind all present
and former holders of a Claim against, or Equity Interest in, the applicable
Liquidating Debtor and its respective successors and assigns, whether or not the
Claim or Equity Interest of such holder is Impaired under this Liquidation Plan
and whether or not such holder has filed a Proof of Claim or Equity Interest or
accepted this Liquidation Plan.
12.3 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.
12.4 Injunction Against Interference with Liquidation 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
Liquidation Plan.
12.5 Exculpation. Notwithstanding anything herein to the contrary, as
of the Effective Date, none of (i) the Liquidating 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 Liquidating Debtors, (vi) the Liquidating Trustee
and (vii) the directors, officers, employees, partners, members, agents,
representatives, accountants, financial advisors, investment bankers, attorneys,
employees or affiliates for any of the persons or entities described in (i),
(iii), (iv), (v) or (vi) of this Section 12.5 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 reorganization of the Reorganizing Debtors
and Heber Debtors; formulating, negotiating or implementing the Liquidation
Plan; the solicitation of acceptances of the Liquidation Plan; the pursuit of
confirmation of the Liquidation Plan; the confirmation, consummation or
administration of the Liquidation Plan or the property to be distributed under
the Liquidation 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 Liquidation Plan.
12.6 Release Granted by the Liquidating Debtors. As of the Effective
Date, the Liquidating 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, Heber Debtors' and the Reorganizing Debtors', Heber
Debtors' and Liquidating Debtors' respective officers, directors, employees,
partners, members, affiliates, 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, 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 in their respective capacities described
above 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
Liquidating Debtors, the Chapter 11 Cases, the Reorganization Plan or this
Liquidation Plan.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Retention of Jurisdiction. The Court shall retain exclusive
jurisdiction of all matters arising under, arising out of, or related to, the
Chapter 11 Cases and this Liquidation 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 Liquidation Plan to the extent
authorized by section 1142 of the Bankruptcy Code or otherwise;
(f) to construe and take any action to enforce this
Liquidation Plan;
(g) to reconcile any inconsistency in any order of the Court,
including, without limitation, the Confirmation Order;
(h) to modify the Liquidation Plan pursuant to section 1127 of
the Bankruptcy Code, or to remedy any apparent non-material defect or omission
in this Liquidation Plan, or to reconcile any non-material inconsistency in the
Liquidation 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 resolve any disputes over the reasonableness, accuracy
and proper scope of any Dissolution Expenses (including those of the Liquidating
Trustee and any Retained Liquidation Professionals);
(k) to determine any other requests for payment of Priority
Tax Claims, Priority Non-Tax Claims or Administrative Expense Claims;
(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 hear and determine disputes arising in connection with
the interpretation, implementation, or enforcement of this Liquidation Plan;
(n) to consider and act on the compromise and settlement or
payment of any Claim against the Liquidating Debtors;
(o) to recover all assets of Liquidating Debtors and property
of the Estates, wherever located;
(p) to determine all questions and disputes regarding title to
the assets of the Liquidating Debtors or their Estates;
(q) 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 Liquidation Plan or the Confirmation Order;
(r) to remedy any breach or default occurring under this
Liquidation Plan;
(s) to resolve and finally determine all disputes that may
relate to, impact on or arise in connection with, this Liquidation Plan;
(t) 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 Liquidation Distribution Date);
(u) to determine such other matters and for such other
purposes as may be provided in the Confirmation Order;
(v) to hear any other matter consistent with the provisions of
the Bankruptcy Code; and
(w) to enter a final decree closing the Chapter 11 Cases.
13.2 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
Liquidation Plan for purposes of voting to accept or reject this Liquidation
Plan and for purposes of determining acceptance or rejection of this Liquidation
Plan by such class or subclass under section 1129(a)(8) of the Bankruptcy Code.
13.3 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 Liquidation 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.
13.4 Payment of Statutory Fees. All fees payable for any particular
Liquidating Debtor, pursuant to section 1930 of Title 28 of the United States
Code shall be paid by the Liquidating Trustee through the entry of a final
decree closing the Chapter 11 Case of such Liquidating Debtor.
13.5 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.
13.6 Effectuating Documents and Further Transactions. The chief
executive officer of each of the Liquidating 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 Liquidating Debtors as may be necessary or appropriate to
effectuate and further evidence the terms and conditions of this Liquidation
Plan, without any further action by or approval of the Board of Directors or
other governing body of the Liquidating Debtors.
13.7 Successors and Assigns. The rights, benefits and obligations of
any person named or referred to in this Liquidation Plan shall be binding upon,
and shall inure to the benefit of, the heir, executor, administrator, successor
or assignee of such person.
13.8 Governing Law. Except to the extent that the Bankruptcy Code or
the Bankruptcy Rules are applicable, the rights, duties and obligations arising
under this Liquidation Plan shall be governed by and construed in accordance
with the laws of the State of New York.
13.9 Modification of Plan. Subject to the provisions of Section 5.5 of
this Liquidation Plan, the Liquidating Debtors reserve the right, in accordance
with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify this
Liquidation Plan at any time prior to the entry of the Confirmation Order.
Additionally, the Liquidating Debtors reserve the right to alter, amend, modify,
revoke or withdraw the Liquidation Plan as it applies to any particular
Liquidating Debtor. After the entry of the Confirmation Order, the Liquidating
Trustee may, upon approval of the Oversight Nominee and order of the Court,
amend or modify this Liquidation Plan, in accordance with section 1127(b) of the
Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency
in this Liquidation Plan in such a manner as may be necessary to carry out the
purpose and intent of this Liquidation Plan. A holder of an Allowed Claim or
Equity Interest that is deemed to have accepted this Liquidation Plan shall be
deemed to have accepted this Liquidation Plan as modified if the proposed
modification does not materially and adversely change the treatment of the Claim
or Equity Interest of such holder.
Additionally, the Liquidating 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 Liquidating Debtors also reserve the right to withdraw prior to
the Confirmation Hearing one or more Liquidating Debtors from the Liquidation
Plan, as the case may be, and to thereafter file a plan solely with respect to
such Liquidating Debtor or Liquidating Debtors.
13.10 Rules of Construction. For purposes of this Liquidation Plan, the
following rules of interpretation apply:
(a) The words "herein," "hereof," "hereto," "hereunder" and
others of similar import refer to this Liquidation Plan as a whole and not to
any particular section, subsection, or clause contained in this Liquidation
Plan.
(b) The word "including" shall mean "including without
limitation."
(c) 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.
(d) Any reference in this Liquidation 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.
(e) Any reference in this Liquidation 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.
(f) Unless otherwise specified, all references in this
Liquidation Plan to Sections, Articles, Schedules and Exhibits are references to
Sections, Articles, Schedules and Exhibits of or to this Liquidation Plan.
(g) 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 Liquidation Plan.
(h) 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 Liquidation Plan.
13.11 Computation of Time. In computing any period of time prescribed
or allowed by this Liquidation Plan, unless otherwise expressly provided, the
provisions of Bankruptcy Rule 9006 shall apply.
13.12 Notices. Following the Effective Date, any notices to or requests
of the Liquidation Debtors by parties in interest under or in connection with
this Liquidation 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 Liquidating Trustee and any counsel to
the Liquidating Trustee (each such party to be designated in the Notice of
Designation).
13.13 Exhibits. All Exhibits and Schedules to this Liquidation Plan are
incorporated into and are a part of this Liquidation Plan as if set forth in
full herein.
13.14 Counterparts. This Liquidation Plan may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.
13.15 Severability. If, prior to the Confirmation Date, any term or
provision of this Liquidation 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
Liquidation 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 Liquidation 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 Liquidation Plan,
as it applies to any particular Liquidating 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 Liquidation Plan as it applies to any other
Liquidating Debtor or (b) the Liquidating Debtors' ability to modify the
Liquidation Plan, as it applies to any particular Liquidating Debtor, to satisfy
the confirmation requirements of section 1129 of the Bankruptcy Code.
Dated: New York, New York
September 8, 2003
OGDEN NEW YORK SERVICES, INC.
By: /s/ Scott G. Mackin
-------------------
ALPINE FOOD PRODUCTS, INC.
By: /s/ Scott G. Mackin
-------------------
BDC LIQUIDATING CORP.
By: /s/ Scott G. Mackin
-------------------
BOULDIN DEVELOPMENT CORP.
By: /s/ Scott G. Mackin
-------------------
COVANTA CONCERTS HOLDINGS, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA ENERGY SAO JERONIMO, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA EQUITY OF ALEXANDRIA/ARLINGTON, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA EQUITY OF STANISLAUS, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA FINANCIAL SERVICES, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA HUNTINGTON, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA KEY LARGO, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA NORTHWEST PUERTO RICO, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA OIL & GAS, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA POWER DEVELOPMENT OF BOLIVIA, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA POWER DEVELOPMENT, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA SECURE SERVICES USA, INC.
By: /s/ Scott G. Mackin
-------------------
COVANTA WASTE SOLUTIONS, INC.
By: /s/ Scott G. Mackin
-------------------
DOGGIE DINER, INC.
By: /s/ Scott G. Mackin
-------------------
GULF COAST CATERING COMPANY, INC.
By: /s/ Scott G. Mackin
-------------------
J.R. JACK'S CONSTRUCTION CORPORATION
By: /s/ Scott G. Mackin
-------------------
LENZAR ELECTRO-OPTICS, INC.
By: /s/ Scott G. Mackin
-------------------
LOGISTICS OPERATIONS, INC.
By: /s/ Scott G. Mackin
-------------------
OFFSHORE FOOD SERVICE, INC.
By: /s/ Scott G. Mackin
-------------------
OFS EQUITY OF ALEXANDRIA/ARLINGTON, INC.
By: /s/ Scott G. Mackin
-------------------
OFS EQUITY OF BABYLON, INC.
By: /s/ Scott G. Mackin
-------------------
OFS EQUITY OF DELAWARE, INC.
By: /s/ Scott G. Mackin
-------------------
OFS EQUITY OF HUNTINGTON, INC.
By: /s/ Scott G. Mackin
-------------------
OFS EQUITY OF INDIANAPOLIS, INC.
By: /s/ Scott G. Mackin
-------------------
OFS EQUITY OF STANISLAUS, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN ALLIED ABATEMENT & DECONTAMINATION
SERVICE, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN ALLIED MAINTENANCE CORP.
By: /s/ Scott G. Mackin
-------------------
OGDEN ALLIED PAYROLL SERVICES, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN ATTRACTIONS, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION DISTRIBUTING CORP.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION FUELING COMPANY OF
VIRGINIA, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION SECURITY SERVICES OF
INDIANA, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION SERVICE COMPANY OF
COLORADO, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION SERVICE COMPANY OF
PENNSYLVANIA, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION SERVICE INTERNATIONAL
CORPORATION
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION TERMINAL SERVICES, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN AVIATION, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN CARGO SPAIN, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN CENTRAL AND SOUTH AMERICA, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN CISCO, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN COMMUNICATIONS, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN CONSTRUCTORS, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN ENVIRONMENTAL & ENERGY SERVICES CO.,
INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN FACILITY HOLDINGS, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN FACILITY MANAGEMENT CORPORATION OF
ANAHEIM
By: /s/ Scott G. Mackin
-------------------
OGDEN FACILITY MANAGEMENT CORPORATION OF
WEST VIRGINIA
By: /s/ Scott G. Mackin
-------------------
OGDEN FILM AND THEATRE, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN FIREHOLE ENTERTAINMENT CORP.
By: /s/ Scott G. Mackin
-------------------
OGDEN FOOD SERVICE CORPORATION OF MILWAUKEE,
INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN INTERNATIONAL EUROPE, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN LEISURE, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN MANAGEMENT SERVICES, INC.
By: /s/ Scott G. Mackin
-------------------
OGDEN PIPELINE SERVICE CORPORATION
By: /s/ Scott G. Mackin
-------------------
OGDEN SERVICES CORPORATION
By: /s/ Scott G. Mackin
-------------------
OGDEN SUPPORT SERVICES, INC.
By: /s/ Scott G. Mackin
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OGDEN TECHNOLOGY SERVICES CORPORATION
By: /s/ Scott G. Mackin
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OGDEN TRANSITION CORPORATION
By: /s/ Scott G. Mackin
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PA AVIATION FUEL HOLDINGS, INC.
By: /s/ Scott G. Mackin
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PHILADELPHIA FUEL FACILITIES CORPORATION
By: /s/ Scott G. Mackin
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EXHIBITS TO THE LIQUIDATION PLAN
EXHIBIT 1 TO THE LIQUIDATION PLAN
LIST OF LIQUIDATING DEBTORS
Liquidating Debtor Case Number
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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 LIQUIDATION PLAN
EXHIBIT 2 TO THE LIQUIDATION PLAN
LIST OF REORGANIZING DEBTORS
Reorganizing Debtor Case Number
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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 LIQUIDATION PLAN
EXHIBIT 3 TO THE LIQUIDATION PLAN
LIST OF LIQUIDATING DEBTORS THAT FILED ON
INITIAL PETITION DATE AND SUBSEQUENT PETITION DATE
SCHEDULE OF LIQUIDATING DEBTORS FILING ON APRIL 1, 2002
(THE INITIAL PETITION DATE)
Liquidating Debtor Case Number
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Covanta Energy Sao Jeronimo, Inc. 02-40854 (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)
J.R. Jack's Construction Corporation 02-40857 (CB)
Lenzar Electro-Optics, Inc. 02-40832 (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 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, Inc. 02-40838 (CB)
Ogden Cargo Spain, Inc. 02-40843 (CB)
Ogden Central and South America, Inc. 02-40844 (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 Film and Theatre, Inc. 02-40847 (CB)
Ogden Firehole Entertainment Corp. 02-40848 (CB)
Ogden International Europe, Inc. 02-40849 (CB)
Ogden New York Services, Inc. 02-40826 (CB)
Ogden Services Corporation 02-40850 (CB)
Ogden Support Services, Inc. 02-40851 (CB)
PA Aviation Fuel Holdings, Inc. 02-40852 (CB)
Philadelphia Fuel Facilities Corporation 02-40853 (CB)
SCHEDULE OF LIQUIDATING DEBTORS FILING ON JUNE 6, 2003
(THE SUBSEQUENT PETITION DATE)
Liquidating Debtor Case Number
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Alpine Food Products, Inc. 03-13679 (CB)
BDC Liquidating Corp. 03-13681 (CB)
Bouldin Development Corp. 03-13680 (CB)
Covanta Equity of Alexandria/Arlington, Inc. 03-13682 (CB)
Covanta Equity of Stanislaus, Inc. 03-13683 (CB)
Doggie Diner, Inc. 03-13684 (CB)
Gulf Coast Catering Company, Inc. 03-13685 (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 Aviation Security Services of Indiana, Inc. 03-13695 (CB)
Ogden Aviation Terminal Services, Inc. 03-13696 (CB)
Ogden Cisco, Inc. 03-13698 (CB)
Ogden Communications, Inc. 03-13697 (CB)
Ogden Facility Management Corporation of West Virginia 03-13699 (CB)
Ogden Food Service Corporation of Milwaukee, Inc. 03-13701 (CB)
Ogden Leisure, Inc. 03-13700 (CB)
Ogden Management Services, Inc. 03-13702 (CB)
Ogden Pipeline Service Corporation 03-13704 (CB)
Ogden Technology Services Corporation 03-13703 (CB)
Ogden Transition Corporation 03-13705 (CB)
EXHIBITS TO THE LIQUIDATION PLAN
EXHIBIT 4 TO THE LIQUIDATION PLAN
LIST OF HEBER DEBTORS
Heber Debtor Case Number
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AMOR 14 Corporation 02-40886 (CB)
Covanta SIGC Energy, Inc. 02-40885 (CB)
Covanta SIGC Energy II, Inc. 02-40884 (CB)
Heber Field Company 02-40888 (CB)
Heber Geothermal Company 02-40887 (CB)
Second Imperial Geothermal Co., L.P. 02-40882 (CB)