EXHIBIT B TO CONFIRMATION ORDER
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
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:
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 :
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DEBTORS' SECOND JOINT PLAN OF LIQUIDATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
March 2, 2004
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
Second Joint Plan of Liquidation (the "Liquidation Plan").
Page
ARTICLE I DEFINITIONS AND INTERPRETATION...............................1
1.1 Definitions......................................................1
ARTICLE II TREATMENT OF ADMINISTRATIVE...........................15
2.1 Non-Classification..............................................15
2.2 Administrative Expense Claims...................................15
2.3 Compensation and Reimbursement Claims...........................15
2.4 Priority Tax Claims.............................................16
2.5 DIP Financing Facility Claims...................................17
ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS......................17
3.1 General Rules of Classification.................................17
ARTICLE IV TREATMENT OF CLAIMS AND EQUITY INTERESTS..............18
4.1 Class 1-- Allowed Priority Non-Tax Claims.......................18
4.2 Class 2-- Intentionally Omitted.................................18
4.3 Subclass 3A-- Allowed Liquidation Secured Claims................18
4.4 Class 3B-- Allowed Other Secured Liquidation Claims.............19
4.5 Class 4-- Intentionally Omitted.................................19
4.6 Class 5-- Intentionally Omitted.................................19
4.7 Class 6-- Intentionally Omitted.................................19
4.8 Class 7-- Unsecured Liquidation Claims..........................19
4.9 Class 8-- Intentionally Omitted.................................20
4.10 Class 9-- Intercompany Claims...................................20
4.11 Class 10-- Intentionally Omitted................................20
4.12 Class 11-- Equity Interests in the Liquidating Debtors..........20
4.13 Class 12-- Intentionally Omitted................................20
4.14 Class 13-- Intentionally Omitted................................20
ARTICLE V ACCEPTANCE OR REJECTION OF THE LIQUIDATION PLAN.............20
5.1 Voting of Claims................................................20
5.2 Acceptance by an Impaired Class.................................21
5.3 Presumed Acceptance of Plan.....................................21
5.4 Presumed Rejection of Plan......................................21
5.5 Cramdown........................................................21
ARTICLE VI MEANS FOR IMPLEMENTATION....................................21
6.1 Actions Occurring On the Effective Date.........................21
6.2 Fractional Interests............................................22
6.3 Order of Distributions..........................................22
6.4 Time of Distributions...........................................23
6.5 Settlements.....................................................23
6.6 No Interim Cash Payments of $100 or Less on Account
of Allowed Claims Prior to Final Liquidation
Distribution Date...............................................23
6.7 Unclaimed Property..............................................23
6.8 Withholding Taxes...............................................24
6.9 Reservation of Rights of the Estate.............................24
ARTICLE VII PROCEDURES FOR RESOLVING AND TREATING DISPUTED CLAIMS.......24
7.1 No Distribution Pending Allowance...............................24
7.2 Resolution of Disputed Claims and Equity Interests..............24
7.3 Estimation of Claims and Equity Interests.......................25
7.4 Reserve Account for Disputed Claims.............................25
7.5 Allowance of Disputed Claims....................................25
ARTICLE VIII TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.......26
8.1 General Treatment...............................................26
8.2 Cure of Defaults................................................26
8.3 Approval of Assumption and Assignment of
Executory Contracts on the Schedule of Assumed
Contracts and Leases............................................27
8.4 Approval of Rejection of Executory Contracts and Unexpired
Leases..........................................................27
8.5 Deemed Consents and Deemed Compliance...........................27
8.6 Bar Date for Filing Proofs of Claim Relating
to Executory Contracts and Unexpired Leases
Rejected Pursuant to the Liquidation Plan.......................27
8.7 Reservation of Rights Under Insurance Policies and Bonds........28
ARTICLE IX THE LIQUIDATING TRUSTEE.....................................28
9.1 Appointment.....................................................28
9.2 Compensation of the Liquidating Trustee for Dissolution
Expenses........................................................28
9.3 Recovery or Realization of Liquidation Proceeds.................29
9.4 Distributions of Net Liquidation Proceeds.......................29
9.5 Engagement of Professionals.....................................29
9.6 Status of the Liquidating Trustee...............................29
9.7 Authority.......................................................30
9.8 Objectives......................................................31
9.9 Making Distributions............................................31
9.10 Abandonment.....................................................31
9.11 No Recourse.....................................................31
9.12 Limited Liability...............................................31
9.13 Resignation.....................................................31
9.14 Reserves........................................................32
9.15 Statements......................................................32
9.16 Further Authorization...........................................33
ARTICLE X APPOINTMENT OF THE OVERSIGHT NOMINEE........................33
10.1 Appointment of the Oversight Nominee............................33
10.2 Authority and Responsibility of the Oversight Nominee...........33
10.3 Limited Liability...............................................33
10.4 The Oversight Nominee Expenses..................................33
ARTICLE XI CONDITIONS PRECEDENT TO THE CONFIRMATION AND THE
EFFECTIVE DATE..............................................33
11.1 Conditions to Confirmation......................................33
11.2 Conditions Precedent to the Effective Date......................34
11.3 Waiver of Conditions............................................35
11.4 Failure to Satisfy or Waiver of Conditions Precedent............35
ARTICLE XII EFFECT OF CONFIRMATION......................................35
12.1 Discharge.......................................................35
12.2 Binding Effect..................................................35
12.3 Term of Injunctions or Stays....................................35
12.4 Injunction Against Interference with Liquidation Plan...........36
12.5 Exculpation.....................................................36
12.6 Release Granted by the Liquidating Debtors......................37
ARTICLE XIII MISCELLANEOUS PROVISIONS....................................38
13.1 Retention of Jurisdiction.......................................38
13.2 Deletion of Classes and Subclasses..............................39
13.3 Courts of Competent Jurisdiction................................40
13.4 Payment of Statutory Fees.......................................40
13.5 Dissolution of the Committee....................................40
13.6 Effectuating Documents and Further Transactions.................40
13.7 Successors and Assigns..........................................40
13.8 Governing Law...................................................40
13.9 Modification of Plan............................................40
13.10 Rules of Construction...........................................41
13.11 Computation of Time.............................................42
13.12 Notices.........................................................42
13.13 Exhibits........................................................42
13.14 Counterparts....................................................42
13.15 Severability....................................................42
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
5 Schedule of Assumed Contracts and Leases
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.
"Additional New Lenders" shall have the meaning set forth in
the Reorganization Plan.
"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 (except as otherwise provided in Sections
2.3(a) of this Liquidation Plan) and any reclamation claims arising under
section 546(c) of the Bankruptcy Code.
"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.
"Administrative Expense Claims Reserve" means the reserve
established by the Liquidating Trustee on the Effective Date to pay the
Administrative Expense Claims, Priority Tax Claims and Priority Non-Tax Claims
of the Liquidating Debtors, which reserve shall be funded by Reorganized Covanta
in an amount up to $2,500,000.
"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.
"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
$415 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
Adversary Proceeding.
"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.
"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 in the Reorganizing Debtors' Chapter 11
Cases.
"Covanta Liquidating Collateral" means any assets subject to a
first priority lien and security interest of the Covanta Liquidating Secured
Parties.
"Covanta Liquidating Secured Parties" means those Persons
holding a first priority lien on and security interest in any other collateral
other than the holders of Subclass 3A Liquidation Secured Claims.
"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 the Reorganization 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 Liquidation
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 Liquidating 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 Liquidating 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 Residual 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 Heber Reorganization Plan.
"Heber Reorganization Plan" means the Joint Plan of
Reorganization of the Heber Debtors under Chapter 11 of the Bankruptcy Code
(including all exhibits, supplements, appendices and schedules annexed thereto),
dated September 28, 2003, as the same may be amended, modified or supplemented
from time to time.
"Impaired" means, when used with reference to an Allowed Claim
or an Allowed Equity Interest, a Claim or Equity Interest that is impaired
within the meaning of section 1124 of the Bankruptcy Code.
"Indenture Trustee" means Wells Fargo Bank, Minnesota,
National Association, in its capacity as indenture trustee with respect to the
9.25% Debentures.
"Initial 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, Heber
Debtor, Non-Debtor Affiliate, 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, Heber
Debtor or Non-Debtor Affiliate that are rejected, and (g) any other claims or
causes of action of any nature, including any 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 or the Heber Reorganization Plan that are based on an
injury that affects or affected the shareholders or creditors of any of the
Liquidating Debtors, Reorganizing Debtors, Heber Debtors or Non-Debtor
Affiliates 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.
"Investment and Purchase Agreement" means the Investment and
Purchase Agreement, dated as of December 2, 2003, between Covanta and the
Reorganization Plan Sponsor, without giving effect to any further amendments,
supplements or other modifications.
"Investor Group" means an investor group comprising of D.E.
Shaw Laminar Portfolios, L.L.C., S.Z. Investments, LLC and Third Avenue Value
Fund, Inc.
"Lien" has the meaning set forth in section 101(37) of the
Bankruptcy Code.
"Liquidating Debtor Cash" means the aggregate amount of any
cash existing in the accounts of the Liquidation Debtors on the Effective Date.
"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 of 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 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 (vi)
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 Covanta Liquidating
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 Other Secured Liquidation Claims.
"Net Liquidation Proceeds" shall consist of the Liquidation
Proceeds, interest, dividends, and other investment (or other cash equivalent)
income produced by the Liquidation Assets.
"Non-Debtor Affiliate" means any affiliate of the Liquidating
Debtors that is not a subject of these Chapter 11 Cases.
"Notice of Designation" means the notice filed with the Court
on or before ten (10) 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 F argo Bank Minnesota, National Association, et al., pending
before the Court.
"Operating Reserve" means the reserve established by the
Liquidating Trustee on the Effective Date to pay (i) the Oversight Nominee
Expenses and (ii) the Dissolution Expenses, which reserve shall be funded in an
amount not to exceed $500,000.00.
"Other Secured Liquidation Claims" means the Secured Claims
against the Liquidation Debtors held by the Covanta Liquidation Secured Parties.
"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 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.
"Reorganization Plan Sponsor" means Danielson Holding
Corporation, a Delaware Corporation.
"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 $3,000,000 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, (iii) transfer up to $2,500,000 of such Distributions to the
Administrative Expense Claims Reserve and (iv) 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 or the Administrative Expense Claims Reserve, such Cash
shall be contributed to Reorganized Covanta.
"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 Administrative Expense Claims 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 Administrative
Expense Claims 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
and discharged. Reorganized Covanta shall pay in full, on the applicable date
set forth in the Reorganization Plan, such amounts payable under this Section
2.3(a) as are Allowed by the Court, after notice and hearing, or upon such other
terms as may be mutually agreed upon between the holder of such an Allowed
Administrative Expense Claim and Reorganized Covanta and, in each such case,
approved by the Court after notice and hearing. Any request for payment of an
Administrative Expense Claim of the type specified in this Section 2.3(a), which
is not filed by the applicable deadline set forth above, shall be barred. The
Liquidating Debtors shall have no liability for any claim described in this
subsection.
(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. Reorganized Covanta shall pay in full on the
Initial Liquidation Distribution Date Allowed Substantial Contribution Claims,
as ordered by the Court after notice and hearing. The Liquidating Debtors shall
have no liability for any claim described in this subsection.
(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. (a) Each holder of an Allowed
Priority Tax Claim for which only a Liquidating Debtor is liable 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 fixed annual rate equal to four percent
(4%), 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.
(b) Tax Claims For Which Other Debtors Are Liable. Each
holder of an Allowed Priority Tax Claim for which one or more of the Debtors in
addition to a Liquidating Debtor is liable (including but not limited to
Priority Tax Claims arising by virtue of one or more Liquidating Debtor's status
as a member of a consolidated tax group or group under common control with one
or more of the other Debtors) shall be entitled to receive in full satisfaction,
settlement, release, and discharge of and in exchange for such Allowed Priority
Tax Claim, payments in equal semiannual installments in the aggregate principal
amount equal to the amount of such Allowed Priority Tax Claim payable over a
period not exceeding six (6) years after the date of assessment of the Priority
Tax Claim as provided in subsection 1129(a)(9)(C) of the Bankruptcy Code, each
such semiannual payment to include the payment of simple interest on the unpaid
portion of such Claim without penalty of any kind, at the fixed annual rate
equal to four percent (4%), with the first equal semianual installment 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 Reorganized Covanta. Notwithstanding the foregoing, subject to the
consent of the DIP Agents and the Bondholders Committee (which consent shall be
requested on or before the Effective Date), Reorganized Covanta shall have the
option, in lieu of making periodic cash payments to a holder of an Allowed
Priority Tax Claim in accordance with the terms of this Section 2.4(b), to pay
any or all Allowed Priority Tax Claims in Cash, without penalty of any kind, in
an amount equal to the unpaid portion of such Allowed Priority Tax Claim on the
Effective Date or as soon as practical thereafter.
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' 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
with respect to the Liquidating Debtors. Upon the occurrence of the Effective
Date, the Liquidating Debtors shall have no liability for any claims described
in this subsection.
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) (i) each 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 after payment of any
applicable Liquidation Expenses.
(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 Class 3B -- Allowed Other Secured Liquidation Claims.
(a) Classification: Class 3B consists of the Allowed
Liquidation Secured Claims against the Covanta Liquidation Secured Parties.
(b) Allowance: The Class 3B Claims shall be Allowed in the
aggregate amount of the value of the Covanta Liquidating Collateral.
(c) Treatment: On the Effective Date, or as soon thereafter as
practicable, the applicable Liquidating Debtors shall cause to be transferred,
pursuant to section 6.1(c) of this Liquidation Plan, to the Covanta Liquidating
Secured Parties, as holders of the allowed other Secured Liquidation Claims, the
Covanta Liquidation Collateral in full settlement, relase and discharge of the
Class 3B Claims.
(d) Voting: The Class 3B Claims are Impaired, and the holders
of Allowed Class 3B Claims in such Class are 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,
this Liquidation Plan shall not be deemed to impair or expand the rights of
holders of such Allowed Class 7 Claims to pursue any available insurance to
satisfy such Claims; 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 as of the Effective Date.
(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 an Impaired 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 by this Liquidation Plan 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 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 the Reorganizing
Debtors fund the Administrative Expense Claims Reserve and the Operating Reserve
in an amount not to exceed $2,500,000 and $500,000, respectively. On the
Effective Date, or as soon thereafter as practicable, (i) any Liquidating Debtor
Cash shall be transferred to the Operating Reserve and (ii) the Reorganizing
Debtors shall transfer (a) $2,500,000 to the Administrative Expense Claims
Reserve (the "Reorganizing Debtors' Administrative Expense Claims Reserve
Obligation") and (b) $500,000 less the amount of any Liquidating Debtor Cash to
the Operating Reserve (the "Reorganizing Debtors' Operating Reserve
Obligation"). The Operating Reserve and the Administrative Expense Claims
Reserve will be used to fund the implementation of the Liquidation Plan, in
accordance with Sections 9.14(b) and 9.14(c) 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 and to the
Administrative Expense Claims 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 Covanta Liquidating Collateral. On the
Effective Date, or as soon thereafter as practicable, the applicable Liquidating
Debtors shall cause to be transferred to the Covanta Liquidating Secured
Parties, as holders of the Allowed Other Secured Liquidation Claims, all rights,
title and interest to the Covanta Liquidating 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, 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 Order of Distributions. Distributions will be made from
the Liquidation Trust to the holders of Claims against the Liquidating Debtors,
upon the realization of any Net Liquidation Proceeds from the Residual
Liquidation Assets contained in the Liquidation Trust, which were not otherwise
transferred pursuant to the Secured Creditor Direction or the DIP Lender
Direction. To the extent that the Liquidating Trustee is able to extract any Net
Liquidation Proceeds from the Residual Liquidation Assets, such Net Liquidation
Proceeds shall be distributed in the following manner: (i) the Liquidating
Trustee shall first deduct and pay itself any Liquidation Expenses incurred in
extracting such Net Liquidation Proceeds and (ii) the Liquidating Trustee shall
distribute any remaining Net Liquidation Proceeds pro rata to (a) the holders of
Class 3A Claims, to the extent that the Net Liquidation Proceeds are
attributable to a Liquidating Pledgor Debtor; and (b) to the DIP Lenders, to the
extent that the Net Liquidation Proceeds are attributable to a Liquidating
Non-Pledgor Debtor.
6.4 Time of Distributions. Except as otherwise provided for in
this Liquidation Plan, by the Secured Creditor Direction or the DIP Lender
Direction or ordered by the Court, distributions under the Liquidation Plan will
be made on (i) the Initial Liquidation Distribution Date, as to Administrative
Expense Claims, Priority Tax Claims and Priority Non-Tax Claims from the
Administrative Expense Claims Reserve or (ii) any subsequent Liquidation
Distribution Date. The Initial Liquidation Distribution Date shall occur on the
later of the Liquidation Plan Effective Date (or as soon thereafter as
reasonably practicable) and the First Business Day after the date that is (30)
calendar days after the date a Claim becomes Allowed. Each subsequent
Liquidation Distribution Date shall occur on the last Business Day of each
calendar quarter if, on such date, prior to the distribution to holders of
Allowed Claims, there are any Net Liquidation Proceeds. 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.
6.5 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.
6.6 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.
6.7 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.
6.8 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.
6.9 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, filed as Exhibit 5 hereof, as
may be amended, 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. The Liquidating Debtors
reserve the right to add or remove executory contracts and unexpired leases to
or from the Schedule of Assumed Contracts and Leases at any time prior to the
Effective Date.
(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 Deemed Consents and Deemed Compliance. (a) Unless a
counterparty to an executory contract, unexpired lease, license or permit
objects to the applicable Liquidating Debtor's assumption thereof in writing on
or before seven (7) days prior to the Confirmation Hearing, then, unless such
executory contract, unexpired lease, license or permit has been rejected by the
applicable Liquidating Debtor or will be rejected by operation of this
Liquidation Plan, Reorganized Covanta (as assignee of all executory contracts
and unexpired leases assumed by the Liquidating Debtors) shall enjoy all the
rights and benefits under each such executory contract, unexpired lease, license
and permit without the necessity of obtaining such counterparty's written
consent to assumption or retention of such rights and benefits.
(b) To the extent that any executory contract or unexpired
lease contains a contractual provision that would require a Liquidating Debtor
to satisfy any financial criteria or meet any financial condition measured by
reference to such Debtor's most recent annual audited financial statements, then
upon the assumption of any such executory contract or unexpired lease the
Liquidating Debtors shall be deemed to be and to remain in compliance with any
such contractual provision regarding financial criteria or financial condition
(other than contractual requirements to satisfy the minimum ratings from ratings
agencies) for the period through one year after the Effective Date, and
thereafter such financial criteria or financial condition shall be measured by
reference to the applicable Debtor's most recent annual audited financial
statements.
8.6 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.
8.7 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 ten (10) 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 and any Retained
Liquidation Professional Fee Notices to the Oversight Nominee, 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 any
Cash transferred to the Operating Reserve or the Administrative Expense Claims
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 of Net Liquidation Proceeds. On the
Liquidation Distribution Date following the realization of any Liquidation
Proceeds from the sale, transfer, collection or monetization of any Residual
Liquidation Assets in accordance with Section 9.3 of the Liquidation Plan, 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 transferred 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 Making 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 his or her 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
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. Such $500,000 shall be transferred to the Operating Reserve by the
Liquidating Debtors, to the extent of any Liquidating Debtor Cash and the
Reorganizing Debtors, to the extent of the Reorganizing Operating Reserve
Obligation. 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.
(c) The Administrative Expense Claims Reserve. On the
Effective Date, the Liquidating Trustee shall establish the Administrative
Expense Claims Reserve in order to pay all Administrative Expense Claims,
Priority Tax Claims and Priority Non-Tax Claims of the Liquidating Debtors. The
Administrative Expense Claims Reserve shall be funded in an amount up to
$2,500,000, pursuant to the Secured Creditor Direction. Such amount shall be
transferred to the Administrative Expense Claims Reserve by the Reorganizing
Debtors to the extent of the Reorganizing Debtors' Administrative Expense Claims
Reserve Obligation. 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 Administrative Expense Claims 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 ten (10) 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 and the
Reorganization Plan Sponsor;
(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 held by the Reorganizing Debtors, the Heber Debtors or
the Liquidating Debtors against (i) 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 12.6 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 Reorganizing Debtors, the Liquidating Debtors and the Reorganization Plan
Sponsor and (iii) provide that the Liquidating Debtors, the Reorganizing 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, which shall be in form and substance acceptable to
the Reorganization Plan Sponsor, 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;
(e) all actions, documents and agreements necessary to
implement the Liquidation Plan and the Reorganization Plan shall (i) be in form
and substance acceptable to the Reorganization Plan Sponsor and (ii) have been
effected or executed; and
(f) the conditions precedent to closing under the Investment
and Purchase Agreement shall have been satisfied or waived in accordance with
the terms and provisions thereof.
11.3 Waiver of Conditions. The Liquidating Debtors, with the
prior written consent of the Reorganization Plan Sponsor, 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 June 30, 2004 (which date may be
extended by the Liquidating Debtors with the prior written consent of the
Reorganization Plan Sponsor), 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
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. (a) 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, (vii) the Reorganization Plan Sponsor, (viii) the Investor Group and
(ix) 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), (vi), (vii) or (viii) 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,
consummating or implementing the Investment and Purchase Agreement (except, with
respect to the Reorganization Plan Sponsor and the Investor Group, as explicitly
provided pursuant to the Investment and Purchase Agreement); 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. Nothing in this Section
12.5 shall limit the liability or obligation of an issuer of a letter of credit
to the beneficiary of such letter of credit or the obligations of the
Reorganization Plan Sponsor under the Investment and Purchase Agreement.
(b) Notwithstanding any other provision of this Liquidation
Plan, no holder of a Claim or Interest, no other party in interest, none of
their respective agents, employees, representatives, financial advisors,
attorneys, or affiliates, and no successors or assigns of the foregoing, shall
have any right of action against any Reorganizing Debtor, Liquidating Debtor,
Heber Debtor, Specified Personnel, the Committee and any subcommittee thereof,
the Agent Banks, the DIP Agents, the Bondholders Committee and the steering
committee of the holders of the Secured Bank Claims, the Reorganization Plan
Sponsor, the Investor Group, nor any statutory committee, nor any of their
respective present or former members, officers, directors, employees, advisors
or attorneys, for any omission in connection with, related to, or arising out
of, the Chapter 11 Cases, formulating, negotiating or implementing this
Liquidation Plan, formulating, negotiating, consummating or implementing the
Investment and Purchase Agreement (except, with respect to the Reorganization
Plan Sponsor and the Investor Group, as explicitly provided pursuant to the
Investment and Purchase Agreement), solicitation of acceptances of this
Liquidation Plan, the pursuit of confirmation of this Liquidation Plan, the
confirmation, consummation or administration of this Liquidation Plan or the
property to be distributed hereunder, except for gross negligence or willful
misconduct.
(c) Nothing in this Section 12.5 of the Liquidation Plan shall
(i) be construed to exculpate any entity from liability with respect to an act
or omission to the extent that such act or omission is determined by a Final
Order to have constituted fraud, gross negligence, willful misconduct, criminal
conduct or misuse of confidential information that causes damages, or (ii) to
the extent applicable, limit the liability of the professionals representing the
Liquidating Debtors, the Reorganized Debtors, the Committee, the Bondholders
Committee, the Indenture Trustee or the Agent Banks to their respective clients
pursuant to DR 6-102 of the New York Code of Professional Responsibility.
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, the Reorganization Plan
Sponsor, the Investor Group and the Reorganizing Debtors', Heber Debtors',
Liquidating Debtors' and Reorganization Plan Sponsor's respective present or
former officers, directors, employees, partners, members, affiliates, advisors,
attorneys, financial advisors, accountants, investment bankers and other
professionals, and the Committee's, the steering committee for the holders of
the Secured Bank Claims' and the Bondholders Committee's members, advisors,
attorneys, financial advisors, investment bankers, accountants and other
professionals, in each case whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, based in whole or in
part upon actions taken with respect to any omission, transaction, event or
other occurrence taking place on or prior to the Effective Date in any way
relating to the Liquidating Debtors, the Reorganizing Debtors, the Heber
Debtors, the Reorganization Plan Sponsor and the Investor Group, the Chapter 11
Cases, the Reorganization Plan, the Heber Reorganization Plan, the Investment
Purchase Agreement or this Liquidation Plan; provided that, the release granted
pursuant to this Section 12.6 shall in no way effect or release the Claims
arising prior to the respective Petition Dates, if any, of holders of the
Debtors' public securities against parties other than the Liquidating Debtors;
and further provided that nothing in this Liquidation Plan shall effect a
release in favor of any Person other than the Liquidating Debtors with respect
to any debt owed to the United States Government or any regulatory agency
thereof, any state, city or municipality for any liability of such Person
arising under (i) the Internal Revenue Code, or any state, city or municipal tax
code, (ii) the environmental laws of the United States, any state, city or
municipality, (iii) any criminal laws of the United States, any state, city or
municipality, or (iv) any liability arising under federal securities laws; and
further provided that, with respect to the Plan Sponsor and the Investors,
nothing herein shall release the Plan Sponsor or the Investor Group with respect
to obligations pursuant to their contractual obligations under the Investment
and Purchase Agreement and the documents executed in connection therewith or as
specifically provided pursuant to this Liquidation Plan; and further provided
that, with respect to any party to the Exit Financing Agreements (as defined by
the Reorganization Plan), nothing herein shall release any such parties with
respect to obligations pursuant to their contractual obligations, if any, under
the Exit Financing Agreements (as defined by the Reorganization Plan) or as
otherwise provided pursuant to 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 through the entry of a final decree closing the
Chapter 11 Case of such Liquidating Debtor. Unless relieved of any of the
obligation to pay the United States Trustee Fees by further order of the Court,
the Liquidating Trustee shall timely pay the United States Trustee Fees, and
after the Confirmation Date, the Liquidating Trustee shall file with the Court
and serve on the United States Trustee a quarterly disbursement report for each
quarter, or portion thereof, until a final decree closing the Chapter 11 Cases
has been entered, or the Chapter 11 Cases dismissed or converted to another
chapter, in a format prescribed by and provided by the United States Trustee.
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, except as otherwise expressly
authorized pursuant to the Reorganization Plan.
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 the
DIP Financing Facility and Section 5.5 of this Liquidation Plan the Liquidating
Debtors reserve the right: (i) 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; provided, however, that any such amendment
or modification shall require the prior written consent of the Reorganization
Plan Sponsor, (ii) to alter, amend, modify, revoke or withdraw the Liquidation
Plan as it applies to any particular Liquidating Debtor on or prior to the
Confirmation Date; and (iii) to seek confirmation of the Liquidation Plan or a
separate liquidation plan with substantially similar terms with respect to only
certain of the Liquidating Debtors, and to alter, amend, modify, revoke or
withdraw the Liquidation Plan, in whole or in part, for such purpose.
Additionally, the Liquidating Debtors reserve their rights to
redesignate Debtors as Reorganizing 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 the
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.
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.
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: March 2, 2004
OGDEN NEW YORK SERVICES, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
ALPINE FOOD PRODUCTS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
BDC LIQUIDATING CORP.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
BOULDIN DEVELOPMENT CORP.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA CONCERTS HOLDINGS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA ENERGY SAO JERONIMO, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA FINANCIAL SERVICES, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA HUNTINGTON, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA KEY LARGO, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA NORTHWEST PUERTO RICO, INC.
-
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA OIL & GAS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA SECURE SERVICES USA, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA WASTE SOLUTIONS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
DOGGIE DINER, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
GULF COAST CATERING COMPANY, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
J.R. JACK'S CONSTRUCTION CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
LENZAR ELECTRO-OPTICS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
LOGISTICS OPERATIONS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFFSHORE FOOD SERVICE, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFS EQUITY OF ALEXANDRIA/ARLINGTON, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFS EQUITY OF BABYLON, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFS EQUITY OF DELAWARE, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFS EQUITY OF HUNTINGTON, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFS EQUITY OF INDIANAPOLIS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OFS EQUITY OF STANISLAUS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN ALLIED ABATEMENT & DECONTAMINATION SERVICE,
INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN ALLIED MAINTENANCE CORP.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN ALLIED PAYROLL SERVICES, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN ATTRACTIONS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION DISTRIBUTING CORP.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION FUELING COMPANY OF VIRGINIA, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION SECURITY SERVICES OF INDIANA, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION SERVICE COMPANY OF COLORADO, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION SERVICE COMPANY OF PENNSYLVANIA, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION SERVICE INTERNATIONAL CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION TERMINAL SERVICES, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN AVIATION, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN CARGO SPAIN, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN CENTRAL AND SOUTH AMERICA, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN CISCO, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN COMMUNICATIONS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN CONSTRUCTORS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN ENVIRONMENTAL & ENERGY SERVICES CO., INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN FACILITY HOLDINGS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN FACILITY MANAGEMENT CORPORATION OF ANAHEIM
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN FACILITY MANAGEMENT CORPORATION OF WEST
VIRGINIA
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN FILM AND THEATRE, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN FIREHOLE ENTERTAINMENT CORP.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN FOOD SERVICE CORPORATION OF MILWAUKEE, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN INTERNATIONAL EUROPE, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN LEISURE, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN MANAGEMENT SERVICES, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
COVANTA TULSA, INC.
By: /s/ Jeffrey R. Horowitz
--------------------------------------------------
OGDEN PIPELINE SERVICE CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN SERVICES CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN SUPPORT SERVICES, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN TECHNOLOGY SERVICES CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
OGDEN TRANSITION CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
PA AVIATION FUEL HOLDINGS, INC.
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
PHILADELPHIA FUEL FACILITIES CORPORATION
By: /s/ Jeffrey R. Horowitz
------------------------------------------------
EXHIBIT 1 TO THE LIQUIDATION PLAN
LIST OF LIQUIDATING DEBTORS
Liquidating Debtor Case Number
Alpine Food Products, Inc. 03-13679 (CB)
BDC Liquidating Corp. 03-13681 (CB)
Bouldin Development Corp. 03-13680 (CB)
Covanta Concerts Holdings, Inc. 02-16322 (CB)
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 Secure Services USA, Inc. 02-40896 (CB)
Covanta Tulsa, Inc. 02-40945 (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)
EXHIBIT 2 TO THE LIQUIDATION PLAN
LIST OF REORGANIZING DEBTORS
Reorganizing Debtor Case Number
Covanta Acquisition, Inc. 02-40861 (CB)
Covanta Alexandria/Arlington, Inc. 02-40929 (CB)
Covanta Babylon, Inc. 02-40928 (CB)
Covanta Bessemer, Inc. 02-40862 (CB)
Covanta Bristol, Inc. 02-40930 (CB)
Covanta Cunningham Environmental Support, 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, 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 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 Plant Services of New Jersey, Inc. 02-40900 (CB)
Covanta Power Development of Bolivia, Inc. 02-40856 (CB)
Covanta Power Development, Inc. 02-40855 (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 Union, Inc. 02-40946 (CB)
Covanta Wallingford Associates, Inc. 02-40914 (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)
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
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 Secure Services USA, Inc. 02-40896 (CB)
Covanta Tulsa, Inc. 02-40945 (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
Alpine Food Products, Inc. 03-13679 (CB)
BDC Liquidating Corp. 03-13681 (CB)
Bouldin Development Corp. 03-13680 (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)
EXHIBIT 4 TO THE LIQUIDATION PLAN
LIST OF HEBER DEBTORS
Heber Debtor Case Number
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)
EXHIBIT 5 TO THE LIQUIDATION PLAN
SCHEDULE OF ASSUMED CONTRACTS AND LEASES
As of the Effective Date, all executory contracts and
unexpired leases to which each Liquidating Debtor is a party
shall be deemed rejected, except for any executory contract or
unexpired lease that (i) has been previously assumed or
rejected pursuant to a Final Order of the Bankruptcy Court,
(ii) is specifically designated as a contract or lease on this
schedule, 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.
Name of Liquidating Name and Address Description of Contract
Debtor that is the of the Counterparty
Party to the Contract or Other Party)
to the Contract
1. Alpine Food Products, Inc. No executory contract or unexpired
lease will be assumed.
2. BDC Liquidating Corp. No executory contract or unexpired
lease will be assumed.
3. Bouldin Development Corp. No executory contract or unexpired
lease will be assumed.
4. Covanta Concerts Holdings, Inc. No executory contract or unexpired
lease will be assumed.
5. Covanta Energy Sao Jeronimo, Inc. No executory contract or unexpired
lease will be assumed.
6. Covanta Financial Services No executory contract or unexpired
lease will be assumed.
7. Covanta Huntington, Inc. No executory contract or unexpired
lease will be assumed.
8. Covanta Key Largo, Inc. No executory contract or unexpired
lease will be assumed.
9. Covanta Northwest Puerto Rico, Inc. No executory contract or unexpired
lease will be assumed.
10. Covanta Oil & Gas, Inc. No executory contract or unexpired
lease will be assumed.
11. Covanta Secure Services USA, Inc. No executory contract or unexpired
lease will be assumed.
12. Covanta Tulsa, Inc. No executory contract or unexpired
lease will be assumed.
13. Covanta Waste Solutions, Inc. No executory contract or unexpired
lease will be assumed.
14. Doggie Diner, Inc. No executory contract or unexpired
lease will be assumed.
15. Gulf Cost Catering Company, Inc. No executory contract or unexpired
lease will be assumed.
16. J.R. Jacks Construction Corporation No executory contract or unexpired
lease will be assumed.
17. Lenzar Electro-Optics, Inc. No executory contract or unexpired
lease will be assumed.
18. Logistics Operations, Inc. No executory contract or unexpired
lease will be assumed.
19. Offshore Food Service, Inc. No executory contract or unexpired
lease will be assumed.
20. OFS Equity of Alexandria/Arlington, Inc. No executory contract or unexpired
lease will be assumed.
21. OFS Equity of Babylon, Inc. No executory contract or unexpired
lease will be assumed.
22. OFS Equity of Delaware, Inc. No executory contract or unexpired
lease will be assumed.
23. OFS Equity of Huntington, Inc. No executory contract or unexpired
lease will be assumed.
24. OFS Equity of Indianapolis, Inc. No executory contract or unexpired
lease will be assumed.
25. OFS Equity of Stanislaus, Inc. No executory contract or unexpired
Inc. lease will be assumed.
26. Ogden Allied Abatement & No executory contract or unexpired
Decontamination Service, Inc. lease will be assumed.
27. Ogden Allied Maintenance Corp. No executory contract or unexpired
ease will be assumed.
28. Ogden Allied Payroll Services, Inc. No executory contract or unexpired
lease will be assumed.
29. Ogden Attractions, Inc. No executory contract or unexpired
lease will be assumed.
30. Ogden Aviation Distributing Corp. No executory contract or unexpired
lease will be assumed.
31. Ogden Aviation Fueling Company of No executory contract or unexpired
Virginia, Inc. lease will be assumed.
32. Ogden Aviation Security Services of No executory contract or unexpired
Indiana, Inc. lease will be assumed.
33. Ogden Aviation Service Company of No executory contract or unexpired
Colorado, Inc. lease will be assumed.
34. Ogden Aviation Service Company of No executory contract or unexpired
Pennsylvania, Inc. lease will be assumed.
35. Ogden Aviation Service International No executory contract or unexpired
Corporation lease will be assumed.
36. Ogden Aviation Terminal Services, Inc. No executory contract or unexpired
lease will be assumed.
37. Ogden Aviation, Inc. No executory contract or unexpired
lease will be assumed.
38. Ogden Cargo Spain, Inc. No executory contract or unexpired
lease will be assumed.
39. Ogden Central and South America, Inc. No executory contract or unexpired
lease will be assumed.
40. Ogden Cisco, Inc. No executory contract to be assumed.
lease will be assumed.
41. Ogden Communications, Inc. No executory contract or unexpired
lease will be assumed.
42. Ogden Constructors, Inc. No executory contract or unexpired
lease will be assumed.
43. Ogden Environmental & Energy Services No executory contract or unexpired
Co., Inc. lease will be assumed.
44. Ogden Facility Holdings, Inc. No executory contract or unexpired
lease will be assumed.
45. Ogden Facility Management Corporation No executory contract or unexpired
of West Virginia lease will be assumed.
46. Ogden Facility Management Corporation No executory contract or unexpired
of Anaheim lease will be assumed.
47. Ogden Film and Theatre, Inc. No executory contract or unexpired
lease will be assumed.
48. Ogden Firehole Entertainment Corp. No executory contract or unexpired
lease will be assumed.
49. Ogden Food Service Corp.of Milwaukee, Inc. No executory contract or unexpired
lease will be assumed.
50. Ogden International Europe, Inc. No executory contract or unexpired
lease will be assumed.
51. Ogden Leisure, Inc. No executory contract or unexpired
lease will be assumed.
52. Ogden Management Services, Inc. No executory contract or unexpired
lease will be assumed.
53. Ogden New York Services, Inc. No executory contract or unexpired
lease will be assumed.
54. Ogden Pipeline Service Corporation No executory contract or unexpired
lease will be assumed.
55. Ogden Services Corporation No executory contract or unexpired
lease will be assumed.
56. Ogden Support Services, Inc. No executory contract or unexpired
lease will be assumed.
57. Ogden Technology Services Corporation No executory contract or unexpired
lease will be assumed.
58. Ogden Transition Corporation No executory contract or unexpired
lease will be assumed.
59. PA Aviation Fuel Holdings, Inc. No executory contract or unexpired
lease will be assumed.
60. Philadelphia Fuel Facilities No executory contract or unexpired
Corporation lease will be assumed.